These appeals are filed by accused 2 to 4 in C.C.No.47 of 1999 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. They along with other accused were tried for offences punishable under Sections 419, 468 and 471 read with Section 120B of the Indian Penal Code (in short, “IPC”) and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (in short, “the Act”). The trial court found accused 1, 5 and 6 not guilty of the offences and they were acquitted. The 2nd accused was convicted for offences punishable under Sections 468 and 471 read with Section 120B IPC and Section 5(1)(d) read with Section 5(2) of the Act. The 3rd accused was convicted under Sections 468 and 471 read with Section 120B IPC. The 4th accused was convicted under Sections 419, 468 and 471 read with Section 120B IPC The trial court imposed imprisonment and fine on the appellants (accused) under various counts.
2. Facts, in short, are as follows: The 1st accused was working as Upper Division Clerk and the 2nd accused as Fisheries Development Officer in the Office of the Deputy Director of Fisheries Department, Kollam during 1985-86. Fisheries Department used to allot hull of fishing boats on hire purchase to members of Fisheries Co-operative Societies or a group formed by such members. In February, 1985, one person by name T.Abraham, as the leader of a group consisting of himself, G.Lawrence, Alex S. and Bonifies, had applied to the Director of Fisheries for allotment of a hull. That application was forwarded by the Director of Fisheries to the Deputy Director of Fisheries. On the basis of the report sent from the Office of the Deputy Director, the Director of Fisheries with the Government approval directed him to ask the parties to execute an agreement and also to remit 10% of the purchase price, viz., `3,750/-. In purported compliance of that direction, an agreement was executed by four persons. When a notice was sent to T.Abraham, the group leader, it was returned with an endorsement “addressee not known”. Prosecution alleged that the allottee, viz., T.Abraham was not available to receive the hull. 1st accused dishonestly concealed that fact and put up draft proceedings for allotment of hull to T.Abraham and obtained signature of the Deputy Director of Fisheries, Kollam in the proceedings. Thereafter, he prepared an agreement to be executed between the Deputy Director of Fisheries and the group leader T.Abraham along with other members in the group. That agreement was executed and signed on 13.06.1985 by accused 3 to 6 impersonating as the real beneficiaries, viz., T.Abraham, Bonifies, Alex S. and Lawrence. The 1st accused created a false agreement on 13.06.1986 for enabling the said persons to obtain the hull by illegal means. Still further, it is alleged that accused 1 and 2 and other accused persons had entered into a criminal conspiracy and it was in pursuance of that criminal conspiracy, such a false agreement was caused to be executed. The 2nd accused fraudulently and dishonestly attested the signature of T.Abraham, Bonifies, Alex S. and Lawrence knowing them to be false signatures and that they were actually put by Alex S.Thamarassery, Pappachan, Benny and Omanakuttan Pillai (accused 3 to 6) by impersonating the real beneficiaries. Therefore, the prosecution contended that the accused persons are liable to be punished for the aforementioned offences.
3. After conducting a preliminary enquiry, the first information report was registered. After investigation, a final report was filed. Accused appeared before the court and the trial court framed the charges. At the time of trial, 13 witnesses were examined on the side of the prosecution and one witness on the side of the defence. Exts.P1 series to P21 are the exhibits for the prosecution and Exts.D1 and D2 are the defence exhibits.
4. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor.
5. Learned counsel for the 2nd accused contended that the specific case of the prosecution against him that he attested Ext.P2 is factually and legally unsustainable. He further contended that PWs 1 and 5 had signed on many pages of Ext.P2. By no stretch of reasoning it can be contended that the 2nd accused conspired with other accused persons in perpetrating fraud and impersonation. Learned counsel further contended that the prosecution case that T.Abraham is a fictitious person is not established by evidence as there was no serious attempt made by the Investigating Agency to trace out his whereabouts. It is also contended that the evidence of expert examined in this case is legally unreliable.
6. Learned counsel for the 3rd accused contended that he never denied the liability and signature seen on Ext.P2. There is no allegation that Ext.P2 is a product of conspiracy and it is all the more important to note that the 3rd accused was not a beneficiary. Learned counsel further contended that from the 2nd accused's answer to Sec.313 of the Code of Criminal Procedure (in short, “Cr.P.C.”) examination, it is revealed that the entire value of the hull have been paid. Real name of the 3rd accused is Alex S., but he is also known as Alex S.Thamarassery. There is no evidence to hold that the 3rd accused is guilty of any offence.
7. Learned counsel for the 4th accused contended that he is a poor fisherman and was never a member in the alleged conspiracy. He also contended that the expert's evidence cannot be relied on to find that he falsified the documents.
8. Per contra, learned Public Prosecutor contended that there is ample evidence against the accused persons to show that they conspired to commit the offences of impersonation, forgery and other offences alleged against them. Learned Prosecutor vehementally contended that the contentions in the suit filed by the 3rd accused would show that he even denied execution of Ext.P2 agreement. However, he has taken up a position at the time of trial of the case that he executed Ext.P2. This incongruity is fatal to the contentions of the 3rd accused. Further the testimony of PW12, the Finger Print Expert, clearly fixes responsibility on the 4th accused. 2nd accused was the Official Liquidator of Fisheries Co- operative Society, which was under liquidation. He was in custody of all the documents as Receiver. He is the kingpin in the commission of the offences. Learned Prosecutor, therefore, contended that the conviction of the accused persons are legally sustainable.
9. Before considering the rival contentions, it will be apposite to go through the evidence on record.
10. PW1 at the material time functioned as the Deputy Director, Fisheries Department, Kollam. Ext.P1 is the file pertaining to allotment of hull of a boat bearing No.KLA-464. PW1 proved that the hull was allotted in the name of T.Abraham. As part of general mechanization scheme, hull of fishing boats were given on hire purchase agreement to members of Co- operative Societies. Ext.P1(a) is the application submitted by the said Abraham for allotting the hull as per the above scheme. The Government would consider the application and communicate the matter to the Deputy Director of Fisheries. After processing the file, the party would be directed to execute an agreement. Along with the execution of the agreement, 10% of the value of the hull should be remitted to the Office. After remitting the amount, directions would be given to the Sub Inspector of Fisheries Department to handover the hull to the party. This was the procedure contemplated. As per Ext.P1(a), on 04.03.1985, the Director of Fisheries instructed PW1 to submit a detailed report regarding the application filed by T.Abraham. The file contains a draft letter prepared by the 1st accused. PW1 identified the handwriting of the 1st accused. The 2nd accused was working as Fisheries Development Officer. PW1 knew the 3rd accused at the time of the dealings. 1st accused certified that the application submitted by Abraham could be considered favourably. Ext.P1(c) is the order issued by the Government sanctioning the hull in favour of said T.Abraham. Thereafter, Ext.P1(d) letter was sent asking the group leader to deposit 10% of the value of the hull. That was prepared by the 1st accused. It contains the initial of PW1. Original of Ext.P1(d) sent in the name of T.Abraham by registered post returned undelivered. The letter and cover are Exts.P1(e) and (f). Postman endorsed that the addressee could not be found. Even though an initial was obtained from PW1 on Ext.P1(e), it is his evidence that the file was not put up before him. In fact, it should have been put up by the 1st accused for PW1's consideration. Initial only shows the receipt of the unserved letter and it does not show any order passed thereon. Ext.P1(g) is a letter purported to be given by Abraham agreeing to fit an engine on the hull at their expense. Along with Abraham, other members of the group had also signed. Ext.P1(h) is the letter purported to be signed by other members in the group authorising the said Abraham to take delivery of the hull. Ext.P2 is the agreement allegedly executed by T.Abraham, Alex S., Lawrence and Bonifies. It was executed on 13.06.1985. It is an admitted case that Ext.P2 was not written up on sufficient stamp paper. It was written on a stamp paper worth `3/-, whereas it should have been written on a stamp paper worth `15/-. PW1 stated that Ext.P2 agreement is a document containing 27 pages. It is the definite version of PW1 that in Ext.P2, the 2nd accused attested the signatures of T.Abraham, Alex S, Lawrence and Bonifies. On the basis of the attestation by the 2nd accused, PW1 signed on all the pages in Ext.P2 agreement. 1st accused filled up the columns in Ext.P2 agreement. Testimony of PW1 would show that when the 1st accused brought Ext.P2 in a filled up, signed and duly attested condition, he scrutinized it and found that the 2nd accused had attested the signatures and therefore, he put his signature on Ext.P2. PW1 further deposed that none of the parties signed in front of him. PW1 stated that Ext.P1(l) is the letter prepared for directing the group members to sign on a paper worth `15/-. Although it was seen sent, there was no evidence to show that any of the group members received the same.
11. This witness was subjected to searching cross-examination by all the accused persons. In cross-examination, PW1 stated that on 13.06.1985, 1st accused brought Ext.P2 agreement to him and only on finding that the 2nd accused had attested the agreement, he affixed his signature. PW1 in cross-examination deposed that he had no previous acquaintance with the signatures of the members of the group to whom the hull was allotted. Even in cross-examination, PW1 repeated that he signed on all pages of Ext.P2 only because he found an attestation at page 27 by the 2nd accused. PW1 emphatically denied the suggestion that he did attest the signature of the executants. During cross-examination, PW1 admitted that the 2nd accused did not attest the thumb impression of the executants in Ext.P2.
12. PW2 was the Junior Superintendent in the Office of the Deputy Director of Fisheries. He had also handled Ext.P1 file. According to his testimony, 1st accused was the custodian of the file as the Clerk in charge of D1 Section. In this context, it is relevant to note the PW1's testimony that he was not the custodian of the file, although it was kept in an almirah in his room. He asserted that the 1st accused was the custodian which was not controverted in cross-examination. Testimony of PW2 lends support to that of PW1 that the 1st accused was the custodian of the file. Letters sent to Abraham (Exts.P1(e) and (f)) were returned undelivered is a fact not mentioned by the 1st accused in the appropriate records. In spite of cross- examination on this witness, he remained loyal to the prosecution and supported the evidence of PW1. He deposed in cross-examination that Exts.P1(e) and (f), returned on 12.06.1985, do not show a number put by the Office, since it was the office practice not to assign a number to such letters returned undelivered. PW2 in cross-examination, deposed that though Ext.P2 was kept in an almirah in PW1's office, the key was kept by the 1st accused. Suggestion put to this witness at the time of cross- examination that the letters were returned undelivered due to defect in the address is denied by him and he stated that the letters were issued in the address furnished by the concerned person.
13. PW3 was the Fisheries Sub Inspector at the material time. He identified Ext.P4 order whereby PW1 directed to release the hull to T.Abraham. He proved Ext.P4(a) order issued by the Deputy Director of Fisheries, Ext.P4(b) letter issued by PW1 and Ext.P4(c) consent letter executed by Abraham. PW3 deposed that he had no familiarity with said Abraham. Therefore, he wrote a letter to PW1 requesting to attest his signature. Ext.P4(d) is the letter whereby signature of the said Abraham was attested by the Registrar of Co-operative Societies(Fisheries). It is the deposition of PW3 that a person identified himself as Abraham approached him along with 3rd accused. PW3 testified that one installment was paid by the said Abraham. Thereafter, PW3 was transferred out of that office. He identified the attested signature of Abraham as the one seen on Ext.P2. During cross-examination by accused 3 to 6, PW3 stated that he was not familiar with the signature of T.Abraham and that was why he took recourse to a procedure to get his signature attested.
14. PW4 was examined to prove Ext.P4 letter. He further proved that the installment was paid by the 5th accused. Since the subsequent installments were defaulted, a letter was sent to the group leader, viz., T.Abraham, which was returned with an endorsement addressee not known. That was marked as Ext.P4(f). The cover was marked as Ext.P4 (g). It is also stated by PW4 that on enquiry, it was revealed that the boat was run by the 5th accused (Benny) and the 4th accused (Pappachan). They are brothers. PW4 deposed further that a letter was sent to the group leader Abraham on 24.05.1986 intimating him that the boat should not be used for fishing in high sea as it was off season. Later, the boat sunk and the debris were kept in the house of 5th accused. These facts are not disputed. In cross-examination, PW4 stuck to his versions in the chief- examination.
15. PW5 was the Deputy Registrar of Co-operative Department.
He reinforced the contentions of PWs 3 and 4 that he identified the signature of Abraham in Ext.P4(d). It is his version that one person by name Abraham came to him and signed in his presence. That was attested by PW5. Before attesting, PW5 verified the agreement (Ext.P2) and compared his signature. It is the definite version of PW5 that signature of the said Abraham was attested in Ext.P2 and on that basis, he attested Ext.P4(d). According to the version of PW5, 3rd accused brought Abraham before him. Ext.P5 is the register showing the membership of fishermen in the Co-operative Society. Ext.P5(a) is the relevant page showing the membership given to Abraham. At page 45 in Ext.P5, membership given to Bonifies could be seen, which was marked as Ext.P5(b). It is interesting to note that in the above documents, the name of the introducer could not be seen. Ext.P5(c) refers to the membership of Alex. S. (3rd accused). There also signature of the person who introduced him could not be seen. PW5 stated that on Ext.P5(c) somebody had written Alex Thamarassery. But, it is not known who wrote the name. When cross-examined by the 2nd accused PW5 stated that he compared the signature of Abraham seen on Ext.P2 with that on Ext.P4(d). PW5 affirmatively stated that when he attested signature of a person, he did not attest the identity of the person, but only the signature put in front of him. Cross-examination on this witness did not yield much result.
16. PW6 proved Ext.P7 file relating to allotment of hull to T.Abraham. It contains the signatures of the group members duly attested by the 2nd accused. As per Ext.P7(b), hull of the boat was ordered to be released to a group consisting of Abraham, Bonifies, Alex and Lawrence. They appeared before PW6 and one person signed as Abraham before him. That is Ext.P7(c). According to his chief-examination, 5th accused impersonated as Abraham and the witness identified 5th accused from the dock. In cross-examination, PW6 deposed that he had no previous acquaintance with Abraham. According to the testimony of PW6, accused 3 to 6 were present at the time when they came to get the boat released. PW6 further deposed that at the time when the work of the boat was being done, 5th accused used to come on many occasions to over see. It is the definite version of PW6 that on the basis of the attestation of signatures by the 2nd accused, the hull was released to the said persons. Even though this witness was cross-examined by all the accused persons, no evidence could be brought out to discredit his worth.
17. PW7 is a person by name N.Boniface. He is a fisherman. He was cited to prove that Bonifies seen on Ext.P2 is not this person. According to his testimony, he is not a member in Ext.P5 Co-operative Society.
18. PW8 was the Fisheries Development Officer, Kollam and she was cited to prove that the Co-operative Society was under liquidation at that time. On 16.07.1984, the 2nd accused took charge as liquidator of the Society. Prosecution relied on the testimony of this witness to show that the 2nd accused was personally knowing the identity of the members of the Society.
19. PW9 is a carpenter who was examined by the prosecution to prove that the accused 3 and 4 took the boat to a yard for body building. According to his testimony, he knew only the 3rd accused. He was declared hostile and cross-examined by the Prosecutor. His evidence is not of much help to the prosecution.
20. PW10 was the Vigilance Dy.S.P.. He registered the case.
PW11 was the Under Secretary in the Vigilance Department at the material time. He proved Ext.P11 sanction order issued to prosecute accused 1 and 2.
21. PW12 is the Finger Print Expert. He was working in the Department of Finger Print Bureau, Thiruvananthapuram. He compared the finger impressions in the disputed documents with that of accused 3 to 6 in this case. The finger impressions were attested by the Dy.S.P. The disputed document (Ext.P2(c)) was received along with the admitted finger impressions of the accused, duly attested by the Dy.S.P. In his examination, he found that the disputed finger impressions marked as Q1 and Q2 against the name of Abraham and Bonifies in Ext.P2 were not identical with the finger impressions of the four persons attested by the Dy.S.P. The finger impressions marked against the name Alex (Q3) and against the name Lawrence (Q4) in the agreement (Ext.P2) were found identical with the left thumb impressions marked 'A' of the 3rd accused and marked 'B' of the 4th accused respectively. After comparing the finger impressions, PW12 sent a report. That was marked as Ext.P12. Four sets of finger impressions of accused 3 to 6 were marked as Exts.P13 to P16 respectively. It is the deposition of PW12 that he has noted the characteristics of the finger prints, etc. in Ext.P12 report. Suggestion put in cross-examination that the finger impressions to be compared with the questioned impressions ought to have been taken by the expert is denied by this witness. According to him, that was not necessary. It is the version of PW12 that all the Police Officials from the level of Head Constables were trained in taking finger impressions.
22. PW13 was the Vigilance Dy.S.P. and he conducted the investigation. As part of investigation, he took the finger prints of the accused persons. Along with that Ext.P2(c) was sent up to the Finger Print Bureau for comparison. He proved the procedure. Testimony of this witness is in complete harmony with that of PW12. During cross- examination on this witness, it was suggested that the person by name Bonifies shown in the group was a different person than who was examined as PW7. There is however no dispute to this proposition.
23. This witness was extensively cross-examined by the accused persons. Suggestion put forward by the defence counsel appearing for the 3rd accused that the 3rd accused is a member of the Fisheries Co-operative Society is denied by PW13. According to him, one Alex S., Kamukath Veedu, Kavanadu Post, was the member in the Society. In the first information report, name and address of the 3rd accused is shown as Alex, S/o.Sebastian, Thamarassery, Kavanadu. This witness also deposed that from 16.07.1987 onwards, the Society was under liquidation and the 2nd accused was the liquidator. It is also come out in evidence that revenue recovery proceedings were initiated against the 3rd accused for defaulting payments. Suggestion put forward by the defence counsel that the 3rd accused was falsely implicated on account of political pressure exerted on PW13 had been denied by him. During the cross-examination of the counsel for accused 4 to 6, PW13 deposed that the investigation started on the basis of Ext.P9. Further, the suggestion that no notice was sent in the correct address to Abraham, the group leader, is also denied by PW13. In the course of investigation by PW13, he understood that Abraham was a native of Kulachal in Tamil Nadu and he resided at Kavanadu in Kollam District for the purpose of fishing. It is also stated by this witness that he was residing in a house by name Kamukath at Kollam. In the course of cross-examination by the counsel for 1st accused, PW13 deposed that in spite of detailed investigation, he could not trace out a person by name Abraham, but he got the information that the person by name Lawrence comprised in the group was dead.
24. I shall deal with the evidence of DW1 also. He was the Village Officer, Sakthikulangara. He knew the 3rd accused as Alex Thamarassery. He proved Ext.D2 certificate issued by him. As per Ext.D2, a person by names Kamukath Veettil Alex. S. and Thamarassery Alex. S. is one and the same. During cross-examination, this witness deposed that Ext.D2 certificate was issued for the purpose of producing before the District Co- operative Bank, Kollam. That fact is mentioned in Ext.D2 as well. It is the testimony of DW1 that he would not have given a certificate like Ext.D2, if he was told that it was for producing before a court. In the cross- examination, he stated that he spent money out of his pocket for going to places to make an enquiry about the 3rd accused. It has come out in evidence that he was taking an undue interest for issuing Ext.D2 certificate.
DW1 admitted that the 3rd accused contested a Panchayat election in the name as Alex Thamarassery. Totality of evidence of DW1 will go to show that he was going out of the way to support the case of the 3rd accused.
25. On the basis of the above evidence, the trial court raised the following points for consideration :
“(1) Whether the accused had entered into a criminal conspiracy to cheat the Fisheries Department and to obtain the hull?
(2) Whether in pursuance of the criminal conspiracy A1 and A2 being public servants attested the signatures of A3, A4 and other persons as the signatures of the real beneficiaries named in the agreement and thereby allowed these persons to obtain pecuniary advantage by illegal or corrupt means or by abusing the official position of A1 and A2?
(3) Whether in pursuance of the criminal conspiracy the accused had made or created false documents for cheating the Fisheries Department?
(4) Whether in pursuance of the said criminal conspiracy the accused had fraudulently or dishonestly used as genuine any document which they knew or had reason to believe to be forged documents?
(5) Whether there is a valid sanction to prosecute A1 and A2?
(6) Whether any of the accused has committed the offence of cheating by personation?
(7) Whether the accused had committed any offence?
(8) If the accused are proved to have committed any offence, what should be the proper punishment?”
26. Court below heavily relied on the testimony of PWs 1 to 4, 12 and 13 to decide the case against the accused. As mentioned earlier, PW1 was the Deputy Director of Fisheries, Kollam during the relevant period. He proved Ext.P1 file. Ext.P1 file was admittedly handled by the 1st accused who was then a Section Clerk. Ext.P1(a) is the copy of the application dated 20.02.1985 submitted by Shri T.Abraham as group leader for allotment of hull of a boat. Ext.P1(b) is the draft prepared by the 1st accused in which it was suggested that the request of T.Abraham could be considered. Ext.P1(c) is the sanction order dated 16.05.1985 issued by the Government by which the hull of fishing boat KLA- 464 was allotted to the group headed by T.Abraham. In pursuance of Ext.P1(c), a letter was sent to T.Abraham. Ext.P1(d) is the draft of the same. Ext.P1(e) is the original letter sent to T.Abraham in the address shown therein. That was sent on 27.05.1985. It was sent by registered post and it was returned as the addressee could not be found. Ext.P1(f) is the postal cover of the registered letter. Prosecution contended that the 1st accused, who was admittedly the Section Clerk, should have placed it with notes to PW1 for further action, but he did not do so. Initial payment of `3,750/-, being the 10% of the purchase price, was deposited on 12.06.1985. The crucial document in this case is Ext.P2. That is an agreement dated 13.06.1985. This document is the basis for the allotment of hull of a boat to a group of fisherman headed by T.Abraham. Bonifies, Alex. S. and Lawrence G. are the members in the group. It has come out in evidence that the agreement was prepared on insufficient stamp. The agreement contains altogether 27 pages. Learned counsel for the 2nd accused contended that the terms of the agreement ends at page 9 in Ext.P2. We can find signatures and thumb impressions of the aforementioned four persons at page 9. It is the contention of the learned counsel that the 2nd accused had not signed on the last page of the agreement (ie., page 9) nor he attested the signatures and thumb impressions of the executants at page 9, where the agreement ends. It is relevant to note that though a space is provided for putting signatures of witnesses, nobody had signed as witness for execution in Ext.P2. From page 10 onwards in Ext.P2, one can find the rules for supply of mechanised fishing boats on hire purchase system. It goes upto page 22. On all these pages, the group members have signed. At page 23 in Ext.P2, one can find the copy of the Government Order wherein also the parties have signed. Then comes the last page, viz., page 27, where the name and address of the members of the group are shown and they have signed in the respective places. Thereafter, the 2nd accused on 13.06.1985 had attested the signatures of the four persons in the group. After the attestation, he had put his signature and seal at page 27. Contention raised by the learned counsel that it was in fact PW1 who attested the signatures of the group members, and not the 2nd accused, cannot be accepted for more than one reason. As mentioned above, PW1 has categorically stated that he signed on all pages after the group members signed on Ext.P2 and after it was duly attested by the 2nd accused. His version remains credible in spite of cross-examination. Further, the statement of PW1 that Ext.P2 agreement is a document containing 27 pages and it does not end at page 9 is not challenged in cross- examination. It is true that Ext.P2 was not properly executed in the legal sense. Firstly, it was on insufficient stamp. Secondly, no witness was asked to sign at page 9 though a space is provided for affixing the signature of execution witnesses. On a careful look at Ext.P2, it will reveal that the whole document will be complete only when we take the entire 27 pages into consideration. Therefore, the contention raised by the 2nd accused that he had only signed at page 27 and the signatures of four persons at page 27 alone were attested by him cannot be accepted for the obvious reason that Ext.P2 will be complete only if the entire 27 pages are considered together. It is interesting to note that the communications sent in the form of letters to T.Abraham and others, before execution of Ext.P2 agreement, were returned with the endorsement addressees not known.
27. Learned counsel for the 2nd accused contended that if he could be found guilty, then PW1 also should have been arraigned and found guilty as he was aware of the fact that the letter sent to T.Abraham was returned unserved. The returned letter was placed before PW1 and he put initial on it. Court below rightly held that this cannot be a circumstance to find that PW1 was also aware of the fact that the group leader, viz., T.Abraham was a fictitious person. The initial put on the returned letter by PW1 will only indicate that an inward letter was brought to his notice. There is no case for the 1st accused or the 2nd accused that the file was put up before PW1 for drawing his attention to the relevant fact.
28. Another contention raised by the learned counsel for the 2nd accused is that what the 2nd accused attested only was the signatures of four persons named in Ext.P2 and not their identity. According to the 2nd accused, four persons signed in front of him and they were real persons. At page 9 of Ext.P2, thumb impressions of four persons also could be seen. It is true that there is no attestation of these thumb impressions (Ext.P2(c)) by the 2nd accused. But the contention that 2nd accused did not verify the identity of the executants cannot hold good for the reason that as a responsible officer, the 2nd accused should have ascertained the identity of the persons executing Ext.P2 agreement, especially when the notice sent prior to the execution of Ext.P2 was returned with an endorsement that addressee was not known. Besides, it came out in evidence that the 2nd accused was the Receiver appointed while the Co-operative Society, wherein the accused were members, was under liquidation.
29. Learned counsel for the 3rd accused contended that going by the prosecution evidence, it cannot be held either that the 3rd accused impersonated as a different person or that he aided anyone to impersonate. It is the definite case of the 3rd accused that he is known by two names, viz., Alex S. and Alex Thamarassery. Trial court considered this contention of the 3rd accused in detail. In paragraphs 51 to 54, the learned trial Judge found that the contention raised by the 3rd accused that Alex S. seen on Ext.P2 is his another name and he never attempted impersonate cannot be accepted. It is come out in evidence that the 3rd accused is a local political leader and was an influential person in the area. He had membership in the Regional Fisheries Advisory Committee. It is the definite case of the 3rd accused that he had actually signed on Ext.P2 and also the letter concerned authorising T.Abraham to obtain delivery of the hull. On the basis of these contentions, he wanted to establish that there was no forgery or impersonation, nor was any attempt on his part to obtain pecuniary advantage for himself or to anyone else. Learned Prosecutor denied this contention. Prosecution relied on the fact that when letters were issued from the Office of the Deputy Director of Fisheries in the name of T.Abraham, 3rd accused and other persons, all of them returned unserved as the addressees were not known. The 3rd accused has no case that when the letter was sent in the address shown by him in the relevant documents, he had received the same. It is, therefore, contended that the 3rd accused gave an incorrect address in Ext.P2 to misguide the authorities. The finding of PW12, the Finger Print Expert, that thumb impression of the 3rd accused exactly matches with that is seen on Ext.P2 (c) against the name and address of Alex S. probabilises the prosecution case that he himself was the person who signed and executed Ext.P2, but still he chose to evade the notice sent in the above address.
30. Another circumstance borne out from the prosecution evidence against the 3rd accused is his filing a suit, O.S.No.435 of 1990, before the Munsiff's Court, Kollam. Ext.P20 is the certified copy of the plaint. The suit is admittedly filed by the 3rd accused in the name Alex Thamarassery. The suit is against the State of Kerala for initiating revenue recovery proceedings in connection with non-payment of amounts due on a fishing boat bearing No.KLA-464. In the plaint, the 3rd accused took a stand that the plaintiffs in the suit had no transaction with the Fisheries Department as alleged in the revenue recovery proceedings. Virtually, 3rd accused denied any connection with the fishing boat bearing No.KLA-464. Ext.P21 is an affidavit filed by the 3rd accused in the suit. In the affidavit also, the 3rd accused contended that the plaintiffs in the suit had not executed any document as alleged by the Fisheries Department. As the decision in the suit went against them, the 3rd accused and another, who were the plaintiffs in the suit, had filed an appeal before the District Court, Kollam as A.S.No.173 of 1995 against the judgment and decree in the suit. The trial court rightly relied on these facts to find that the stand taken by the 3rd accused at the time of this trial was not the one he adopted at the time of trial of the suit. Apart from that, the report of the Finger Print Expert is also considered by the court below to find that the 3rd accused cannot pretend innocence in this matter. Learned counsel fairly submitted that it was a mistake on the part of 3rd accused to file a suit with these sort of allegations. According to the learned counsel, the 3rd accused is not a beneficiary of the transaction. Further, he relied on the statement of the 2nd accused, at the time when he was examined under Section 313 Cr.P.C. that the entire value of the hull had been paid off. That fact may not be much relevant, if the offences alleged against the accused persons had already been attracted. I find no illegality in the appreciation of the evidence by the trial court in finding that the 3rd accused also actively took part in the commission of offences.
31. Learned counsel for the 4th accused raised a contention that the comparison of the thumb impressions were not done in accordance with the provisions of law. We will consider this contention at the time when we examine the evidence of PW12 and his reports. Learned Prosecutor submitted that the case of the 2nd accused that PW1 is equally guilty since he had signed on all pages of Ext.P2 cannot be sustained because there is clinching evidence that he signed on all pages in Ext.P2 believing the attestation made by the 2nd accused at the foot of the document.
32. As mentioned earlier, PW13, the Investigating Officer , took the finger prints of accused 3 to 6 in four sets. The impressions were taken on 09.12.1986 and 11.12.1986. PW13 deposed that the said impressions along with those seen on Ext.P2(c) were sought to be compared with one another and for that purpose, it was sent to the Finger Print Bureau, Thiruvananthapuram.
33. Ext.P12 is the report of the Finger Print Expert, who has been examined as PW12. It contains a covering letter by the Director of Finger Print Bureau, Thiruvananthapuram. In the report, PW12 has mentioned that he had examined and compared the disputed finger impressions taken against the name T.Abraham marked as Q1 by him, that is taken against the name N.Bonifies marked as Q2 by him, that is taken against the name Alex S. marked as Q3 by him and the impression taken against the name G.Lawrence marked as Q4 by him. The impressions seen on Ext.P2 were also taken into consideration. The said thumb impressions were compared with the ones taken from the accused by PW13. The report contains the reasons for the conclusion arrived at by PW12 to form an opinion in this matter. The report further shows that the finger impressions marked as Q1 and Q2 in Ext.P2 are not identical with any of the finger impressions of the accused persons since they did not posses identical ridge characteristics in their nature and relative positions. He further reported that the disputed finger impression marked as Q3 in Ext.P2 was found to be identical with the specimen left thumb impression of Alex Thamarassery (3rd accused) marked as A. Still further, he reported that the disputed finger impression marked as Q4 in Ext.P2 was found to be identical with the specimen left thumb impression of Pappachan (4th accused) marked as P. The expert has stated reasons for substantiating his findings. The exhaustive report contains the finger impressions as well.
34. PW12 deposed that at the material time he was working in the State's Finger Print Bureau as the Finger Print Expert - Higher Grade. He proved the contents in Ext.P12. Even though the accused persons separately cross-examined this witness, no acceptable reason could be brought out to discredit his scientific acumen and assessment about the finger impressions. Learned counsel for accused 3 and 4 contended that the Finger Print Expert has not stated anything about his qualification and experience in this field. It is also contended that PW13, the Investigating Officer, should not have taken the finger impressions of the accused persons and it should have been obtained through intervention of the court. I am not impressed by these contentions for the following reasons. PW12 is an Officer in a Government Department. Admittedly, he was working there as Finger Print Expert - Higher Grade for a considerable length of time. It can only be presumed that he should have come across so many disputed documents and would have examined the same as part of his job. That apart, there is no challenge in the cross-examination against his competence in this matter. Regarding the contention that PW13 should not have taken the finger prints, it is also unsustainable since the exercise of taking finger prints falls within the realm of investigation. There is no rule shown to hold that PW13 was not authorised to take finger prints as part of investigation. Therefore, these contentions are simply to be repelled. On a reading of Ext.P12 report and the testimony of PW12, I find that the expert's opinion was rightly relied on by the trial court to find the complicity of the accused persons.
35. Learned counsel for the 3rd accused contended that the criminal conspiracy alleged by the prosecution went unestablished. All the appellants have been convicted for criminal conspiracy. Well-known saying about conspiracy is that it is a matter of inference deduced from certain criminal acts of the parties, accused of a crime, done in pursuance of an apparent criminal purpose, common between them. The constituent elements of criminal conspiracy are - (i) an agreement between two or more persons; (ii) to do an illegal act; (iii) to do a legal act by illegal means and (iv) an overt act done in pursuance of the conspiracy. A conspiracy in law requires the agreement of at least two persons and two minds. Normally, the criminal conspiracy is hatched in secrecy and it may be idle to expect direct evidence on the criminal conspiracy. It was the allegation of the prosecution that all the accused persons, including those who were acquitted by the trial court, entered into a criminal conspiracy and in pursuance of that conspiracy, a false agreement (Ext.P2) was caused to be executed and that the 2nd accused dishonestly and fraudulently attested the signatures of T.Abraham, Bonifies, Alex S. and G.Lawrence knowing them to be false signatures and they were put by Alex S.Thamarassery, Pappachan, Benny and Omanakuttan Pillai by impersonating the real beneficiaries. Therefore, the prosecution contended that there was a criminal conspiracy between the accused to commit the offences. Totality of circumstances revealed from the prosecution evidence clearly indicate the meeting of minds and hatching of criminal conspiracy to make an unlawful gain. Therefore, the contention of the accused persons that criminal conspiracy was not proved cannot be accepted.
36. Now we shall consider other legal aspects in the case. Section 5(1)(d) of the Act reads as follows:
“5. Criminal misconduct in discharge of official duty:-
(1) A public servant is said to commit the offence of criminal misconduct-
xxxxxx (d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
xxxxx”
If we carefully read the Section, it can be seen that the ingredients of the offence are - (i) that the accused should be a public servant; (ii) that the accused should use some corrupt or illegal means or abuse his position as a public servant; (iii) that the accused thereby should have obtained a valuable thing or pecuniary advantage and (iv) for himself or for any other person. (see Dhaneshwar Narain Saxena v. The Delhi Administration (AIR 1962 SC 195). It is also settled that in order to establish the charge under Section 5(1)(d) of the Act, it is not necessary that the public servant while misconducting himself should have done so in the discharge of his duties. The expression 'in discharge of his duties' is mere descriptive of the offence and not an ingredient thereof (see Dhaneshwar Narain Saxena 's case (supra)). The terms 'pecuniary advantage' occurring in the Section are very wide. Though every kind of gratification is not pecuniary advantage or valuable thing, pecuniary advantage and valuable thing are included in gratification.
37. In this case, there is ample evidence to find that the 2nd accused could have easily understood the identity of the persons who executed Ext.P2 agreement. His contentions that he did not vouchsafe for the identity of the executants in Ext.P2 and only attested their signatures cannot be accepted for more than one reason. Firstly, he as an Officer was bound to verify and satisfy about the identity of the executants. Secondly, as established from the evidence, he was the official receiver of a Fishermen Co-operative Society, which was under liquidation. That apart, the convincing evidence let in by PW1 and other witnesses would show that all other Officers acted on the premises of the attestation of signatures of the group members by the 2nd accused. It is also important to note that the identity of group leader T.Abraham was questionable because of the return of letters sent to him unserved. That information was suppressed from the higherups by the 2nd accused. It was argued that the same set of facts applied to the acquitted 1st accused as well. This contention cannot be accepted for the reasons that acquittal of the 1st accused has become final as there is no appeal by the State and at any rate that will not absolve the 2nd accused from the criminal liability.
38. Other offences for which the accused persons are convicted are falling under Sections 419, 468 and 471 IPC. Accused 2 and 3 were convicted by the court below under Sections 468 and 471, apart from Section 120B IPC. Besides, the 2nd accused, being a public servant, was also convicted under Section 5(1)(d) read with Section 5(2) of the Act. The 4th accused, in addition to the above said Sections, was convicted under Section 419 IPC also. Section 419 IPC deals with punishment for cheating by personation. The ingredients of this offence are - (i) that the accused cheated the complainant; and (ii) that he did so by pretending to be some other person, or by knowingly substituting one person for another; or by representing that he, or some other person, is a person other than the person he really is. On a reading of Section 419 IPC, it can be seen that cheating is an essential ingredient of the offence. It has come out in evidence that the 4th accused impersonated himself to be G.Lawrence, a group member, to whom the hull was allotted. The element of cheating is writ large from the conduct of the accused established by evidence. Therefore, I find that the court below rightly convicted the 4th accused under Section 419 IPC also.
39. The offence under Section 468 IPC is relating to forgery for the purpose of cheating. Definition of forgery can be seen in Section 463 IPC. The ingredients of the offence of forgery are - (i) the document or part of the document must be false; (ii) it must have been made dishonestly or fraudulently in one of the three modes specified in Section 464 IPC; and (iii) it must have been made with intent: (a) to cause damage or injury to (i) the public, or (ii) any person; or (b) to support any claim or title; or (c) to cause any person to part with property; or (d) to cause any person to enter into an express or implied contract; or (e) to commit fraud or that fraud may be committed. Section 468 IPC applies to those cases where forgery has been committed for the purpose of cheating. Evidence in this case clearly show that Ext.P2 agreement was created fraudulently and by committing forgery for the purpose of cheating the Government for obtaining hull of a boat. Therefore, the testimony of all the material witnesses would emphatically show that the accused persons are guilty of the offence under the above Section.
40. Section 471 IPC is relating to punishment for using forged document as genuine one. Overwhelming prosecution evidence establish that falsely created Ext.P2 was used as a genuine document for obtaining possession of hull of the boat. Therefore, this offence is also revealed from the evidence.
41. Learned counsel for the 2nd accused relying on the Vigilance and Anti-corruption Bureau Manual contended that Rule 185 thereunder states about the precautions to be taken with regard to handling of questioned documents. It is the contention of the accused that PW13 did not follow the prescriptions in the Manual. I find no basis for this contention as there was no question put to PW13 when he was cross-examined to suggest that he improperly handled the questioned documents. Not only that PW12 was also not questioned by the accused regarding the inadequacy or impropriety in collecting the samples for examination. Therefore, this contention cannot be accepted.
42. Learned counsel for the 2nd accused heavily relied on the decisions reported in Devi Lal and another v. The State of Rajasthan (1971 (3) SCC 471) and Bhagirath v. State of Madhya Pradesh (AIR 1976 SC 975). In Devi Lal's case (supra), the ratio seen in paragraph 12 is that if the pivot of the prosecution case is not accepted, a new prosecution case cannot be made to imperil defence. This proposition, though unchallengeable, cannot have any application in the facts of this case. The ratio in Bhagirath's case (supra) is that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis. This decision is also inapplicable to the facts of this case. Learned counsel placed reliance on Jethsur Surangbhai v. State of Gujarat (1984 Cri.L.J. 162), wherein the Apex Court held that in a criminal case of a serious nature, mens rea cannot be excluded and once the charge of conspiracy failed, the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions. Here in this case, the conspiracy is clearly visible from the totality of evidence. Hence that decision can be distinguished on facts. The law stated in B.H.Narasimha Rao v. Govt. of A.P. (AIR 1996 SC 64) is that in a case having an allegation of criminal conspiracy under Section 120B IPC and when seven persons are charged and all others, except the sole accused were acquitted, then he cannot be convicted for the offence under the said Section. It goes without saying that a single person cannot commit the offence of criminal conspiracy with himself. Here in this case, all the accused are found to be conspiring with one another for deceiving the Government. Therefore, the said decision is also inapplicable.
43. Learned counsel for the 3rd accused relied on the decisions of the Supreme Court in Sanjiv Kumar v. State of Himachal Pradesh (AIR 1999 SC 782) and Vijayan alias Rajan v. State of Kerala (AIR 1999 SC 1086). In Sanjiv's case (supra), the Supreme Court repelled the prosecution case of criminal conspiracy for want of evidence. In Vijayan alias Rajan's case (supra), the Supreme Court has clearly held that it is difficult to establish the criminal conspiracy punishable under Section 120B IPC by direct evidence. It is held however that there should be material showing connection between alleged conspiracy and act done pursuant to that conspiracy. The evidence in this case justify conviction of the accused persons for criminal conspiracy. In order to buttress a proposition that mens rea at the time of inducing the person deceived to deliver any property to any person is essential to constitute the offence under Section 420 IPC, learned counsel placed reliance on the decision in Ajay Mitra v. State of M.P. and others ((2003) 3 SCC 11). This proposition is indubitable.
44. In order to challenge the evidence of PW12, the Finger Print Expert, learned counsel for the 2nd accused relied on the decision in Ramesh Chandra Agrawal v. Regency Hospital Ltd. & others (AIR 2010 SC 806) and it is contended that to accept an opinion evidence of an expert under Section 45 of Evidence Act, it has to be shown that the expert had made a special study of the subject or acquired special experience therein. The seal affixed on Ext.P12 report shows the qualification of the Finger Print Expert. Further, he was working as Finger Print Expert in the Government Finger Print Bureau for a considerable length of time. That apart, there is no challenge in the cross-examination against his competence. Hence that decision cannot be applied to support the defence case.
45. For the above said reasons, I find that the convictions of the accused under the aforementioned provisions can only be found to be proper and reasonable. There is no good reason to interfere with the convictions of the appellants/accused on any count.
46. Learned counsel for the 2nd accused submitted that the court below imposed a harsh punishment on the accused persons and they deserve lenient considerations in the matter of sentence. Learned counsel for the 3rd accused also submitted that the accused persons are very old and they had no criminal antecedents. Considering the entire facts and circumstances, I find that the sentence can be modified suitably in this case.
In the result, the appeals are partly allowed. Conviction of the appellants/accused 2 to 4 in C.C.No.47 of 1999 awarded by the Enquiry Commissioner and Special Judge, Thiruvananthapuram for all offences are confirmed. The sentences awarded are modified in the following manner:
(i) The appellant in Crl.Appeal No.476 of 2001, who is the 2nd accused, shall undergo rigorous imprisonment for a period of six months and pay a fine of `2,000/- (Rupees two thousand only) for the offence under Section 5(1)(d) punishable under Section 5(2) of the Act. In default of payment of fine, he shall undergo simple imprisonment for a period of one month. This appellant is also sentenced to undergo rigorous imprisonment for a period of three months each for the offences under Sections 468 and 471 read with Section 120B IPC.
(ii) The appellant in Crl.Appeal No.526 of 2001, who is the 3rd accused, shall undergo rigorous imprisonment for a period of three months each for the offences under Sections 468 and 471 read with Section 120B IPC. In addition to that, he is sentenced to pay a fine of `5,000/- (Rupees five thousand only) for the offence under Section 471 read with Section 120B IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of one month.
(iii) The appellant in Crl.Appeal No.562 of 2001, who is the 4th accused, shall undergo rigorous imprisonment for a period of three months each for the offences under Sections 419, 468 and 471 read with Section 120B IPC. In addition to that, he is sentenced to pay a fine of `2,000/- (Rupees two thousand only) for the offence under Section 419 IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of one month.
The appellants are entitled to get the benefit of set off under Section 428 of the Code of Criminal Procedure, if they had undergone any detention in this case. Rest of the directions in the judgment of the court below are confirmed.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks “The substantive sentence awarded to each appellant shall run concurrently.” This sentence is added as the last sentence in the common judgment dated 21.11.2014 in Crl.Appeal Nos.476, 526 and 562 of 2001, as per order dated 26.11.2014 in Crl.M.A.No.7399/2014 in Crl.Appeal No.526/2001.
Sd/- Registrar Judicial A.HARIPRASAD, J.
Crl.Appeal Nos.476, 526 & 562 of 2001 COMMON JUDGMENT 21st November, 2014