1. The petitioner is original accused. The learned Judicial Magistrate First-Class, Shehra District-Panchmahals had convicted the petitioner for the offences punishable under Sections 465 and 471 of IPC and sentenced him to undergo Six months rigorous imprisonment and to pay fine of Rs. 3,000/- and in default, to undergo further imprisonment of one month. The petitioner filed Criminal Appeal No.28 of 2001 against the said judgment of conviction, which came to be dismissed by Additional Sessions Judge,10th Fast Track Court,Godhra. The learned Additional Sessions Judge affirmed the order of Trial Court. Hence, the present revision.
2. The facts, in nutshell, are thus:-
2.1 That the petitioner, at the relevant time, was serving as Additional Teacher in Mother Faliya School at village-Nandarva, Taluka-Shehra, District-Panchmahals. It appears that Panchmahals District Education Committee published an advertisement for recruitment of Primary School Teacher. The petitioner had,Pursuant to that advertisement, applied and produced marksheet of S.C.C. examination and PTC examination before the Education Committee. Later on, the PTC marksheet of the petitioner and of some other teachers were sent by the authority to State Examination Board for verification. The marksheet produced by the petitioner shows 20 marks in Mathematics, while the marksheet supplied by the State Examination Board to the authority indicates that the petitioner has obtained 15 marks in Mathematics.
2.2 As per the marksheet submitted by the petitioner, she is declared passed. While as per the marksheet supplied by the State Examination Board, she is declared fail on account of the marks obtained by her in Mathematics. This led to the removal of the petitioner from service, and the District Education Officer lodged criminal complaint against the present petitioner. The present proceeding arises from the said complaint.
2.3 Before the Trial Court, prosecution examined four witnesses. P.W.1 Primary Education Inspector at the relevant time, P.W.4 had retired at the time of deposition and had served the order of removal to the petitioner and P.W. 2 and 3 were serving as Primary Teachers in the school at Nandarva. They (P.W.-2 & 3) are not material witnesses nor they have been cross-examined by the other side. In fact, the case of prosecution rests on evidence of P.W.1, P.W.4 and on the following material documents:
1. Exh.25, 2nd Year PTC Exam. Marksheet, (“Page 93 of paper book”).
2. Exh.29, 2nd Year PTC Exam. Marksheet supplied by State Education Board to the authority (“page 105 of paper book”).
3. Service Book of the petitioner, at Exh.26 (“page 95 of paper book”).
2.4 For considering the case of prosecution, learned Trial Court had framed four issues wherein issue Nos.1 and 2 relate to the offence of cheating. It may be stated that issue Nos.1 and 2 were answered in favour of the petitioner.
The State has not challenged the said findings either before Sessions Court or before any Court and that finding has become final. Issue Nos.3 and 4 relate to forgery. On these issues, Trial Court has recorded the findings against the petitioner.
2.5 On the issue of forgery, learned Trial Court after briefly referring the evidence and submission of learned advocates, has recorded that the marksheet, which contained false description, does not become true marksheet, assuming for the moment that marksheet submitted by the petitioner contained the signature of Secretary of State Examination Board and also the signature of the Examiner itself. The learned Trial Court has recorded that merely because Exh.23 and 25 contained the signature of Secretary of State Education Board the said document does not ceases to be false. In the context of the present case, it may be that the learned Trial Court was prepared to assume that Exh.25 may be bearing true signature of Secretary of State Education Board. Yet, the fact remains that marks shown in the subject of Mathematics, in the marksheet produced at Exh.29 and 25, are at variance. It also held that Exh.25 is false. The petitioner has used this forged marksheet by submitting the same as a true marksheet before District Education Officer. The prosecution has shown and has established that petitioner has used this false marksheet. The learned Trial Court has held that offence is committed/completed on the day on which the petitioner has submitted the false marksheet. The learned Trial Court has also referred and relied on the presumption under Section 114 of Evidence Act. It had held that the other marksheet supplied by the State Education Board to the authority “Exh.29” is presumed to be true and correct as the same is prepared and supplied by the public office.
2.6 Learned Additional Sessions Judge, in short discussion, has affirmed the order of the learned Trial Court. Learned Additional Sessions Judge held that the records establish that the petitioner has colluded with the concerned Clerk, who has prepared the marksheet and that it appeared to be a pre-arrangement of the petitioner with such Clerk. It is a matter of commonsense that no other person (clerk) would have any personal interest in increasing the marks in the marksheet, alteration in the marks appear to be at the instance of the petitioner. The petitioner may have convinced that she would fail and therefore she might have indulged in preparing the marksheet in question. The learned Additional Sessions Judge recorded that it appears from the record that such correction must have been done at the instance of the petitioner.
3. It is not in dispute that petitioner has served as Additional Teacher from 08.05.1986 to 05.10.1993. At the time of hearing, learned advocate for the petitioner Mr.Samirkhan Pathan has submitted that both the lower Courts had committed serious error in recording conviction and revision application requires to be allowed. The learned advocate Mr.Samirkhan Pathan has referred the evidence of P.W.1 and P.W.4. It was submitted that prosecution has failed to establish the charge of forgery, particularly, when material evidence in support of charge has not come before the Court. Much emphasis was placed on the fact that the trial Court had to close the evidence of prosecution because even after repeated issuance of summons and issuance of bailable warrant to the witness, they did not turn up for deposition before the Trial Court. It is also pointed out that original marksheet produced by the petitioner was supplied by the State Examination Board itself and petitioner has not made any correction, overwriting or any type of interpolation. That being so, the case of forgery ought not to have been believed.
4. On the other hand, learned APP Mr.H.K.Patel has drawn attention to Section 471 of IPC. It was pointed out that petitioner is convicted for offence punishable under Section 471 of IPC, which pertains to using forged document. Thus, even if the document may not have been forged by the petitioner herself, mere use of the same attracts Section 471 of IPC. It was submitted that two Courts have concurrently found the petitioner to be guilty and therefore, this Court should not interfere in concurrent findings of two Courts.
5. It may be stated that judgment of learned Additional Sessions Judge is not satisfactory. Further, the decision of the learned Additional Sessions Judge, to say the least, has while affirming the conclusion of learned Trial Court has indulged in, in the impermissible generalization.
6. It is true that mere “use” of the forged documents itself attracts Section-471 of IPC.
Forgery is defined under Section-463. The prosecution has, in order to successed has to establish that the document in question “which is used by the party” is a forged one and also to show that it was used with the intent to cause damage or injury to any person or with the intent to support any claim or title that someone has prepared false document. Thus, though the “use” of forge document itself is an offence under Section 471, however, the prosecution has to establish as to who has prepared the forge document. In absence of that upon whom the Criminal liability can be fasten? Section 471 cannot be read independently of Section 463. In the present case, there are two marksheets before the Court. They are at Exh.25 and 29. In one document, the petitioner’s mark is shown as 20 in Mathematics, while in other, “15” marks is shown. It is admitted position between the parties that Exh.25 does not contain any correction or overwriting or interpolation etc. It appears to be a natural marksheet. Further, the additional fact in favour of the petitioner is that, earlier the petitioner had appeared in exam, and therein, she has failed in English. In that attempt, she had obtained 23 marks in Mathematics. The said marksheet of the petitioner is at Exh.24 [“in paper book page No.91”]. Thereafter, in second attempt, along with the English paper, the petitioner also appeared in exam for Mathematics. The disputed marks i.e. 20 marks in Mathematics, is obtained by the petitioner in this second attempt. It may be stated that it is doubtful that mere producing the alternate marksheet, by itself, establish forgery.
7. During the course of argument, a submission was made by Mr.Samirkhan Pathan that in case this Court does not interfere with the impugned judgment of conviction, then the present case is a fit case for granting benefit of probation to the petitioner. It was submitted that at present, the petitioner is doing only household work and her husband is doing the work of Taxi driver.
They have three children. It was also submitted that neither in the family of the petitioner’s father nor in her in-laws family, anyone is employed in government or anyone is in Government Office and that no manipulation of any kind was made by the petitioner to obtain the incorrect marksheet.
8. Learned APP initially urged that no benefit should be given of probation. However, later on, considering the submissions made by learned advocate for the petitioner, he submitted that necessary orders in the interest of justice may be passed.
9. In view of the facts and circumstance of the present case, it can be said that, whether the case of prosecution on the ground of forgery is proved, beyond reasonable doubt, is debatable. All the same, in view of alternate submission made by learned advocate for the petitioner and in view of the fact that there is a concurrent finding of two courts, below I am not inclined to interfere in the order of the conviction.
10. In the present case, it appears from the record that the complaint came to be lodged somewhere in 1993-1994. The alleged incident has taken place seven or eight years before. Thus, in short, the incident has taken place twenty five years back. In the facts and circumstances of the present case, it appears to be a case wherein petitioner should be granted benefit of probation. In this regard, learned advocate for the parties have drawn attention to couple of cases. Learned APP has drawn attention to 1995 Supp. (2) SCC 385. In that case, the accused were convicted for the offences punishable under Section 304(A) of IPC and were given the benefit of probation. It was observed that the incident was taken place about 15 years back.
11. Learned advocate for the petitioner Mr.Samirkhan Pathan has relied upon a decision of this Court in the case of Raisangbhai Somsjibhai Damor and another versus G.K.Nisarata, Nayab Mamlatdar(Purvatha) and another reported in 2008(2)G.L.H.204 wherein after considering the facts and circumstances and while granting benefit to the accused who was convicted under Section 3,7 & 12(A)(A) of the Essential Commodities Act, 1995, the Court directed the accused to execute bond of good conduct and good behaviour for an amount of Rs. 5,000/= alongwith one surety.
12. Relying on the above case, in the present case also, interest of justice would be served, if the petitioner is granted benefit of probation. The petitioner is directed to execute bond of good behaviour and good conduct of an amount of Rs. 5,000/=(five thousand only) and also one surety of the said amount. The petitioner would require to make declaration in the bond that she would maintain good conduct and behaviour for the period of two years from the date of passing of this order. On that condition, the order of sentence passed by the learned Judicial Magistrate, First Class, Shehra, as affirmed by the learned Additional Sessions Judge, Godhra, is ordered to be suspended. It is further clarified that if any complaint is received that the petitioner has committed breach of the undertaking given by her in the form of bond, then the order of sentence passed against her would be open for affirmation and a suitable order for her imprisonment shall be passed.
13. The petitioner shall give the bond before learned Judicial Magistrate, First Class, Shehra District-Panchmahals,Godhra within six weeks from the passing of this order i.e. by 04.02.2013.
14. R & P to be send back.
Rule is made absolute to the above extent.
The Revision Application is stands disposed of.
dharmendra (R.D.KOTHARI, J.)