IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.815/2015 BETWEEN :
Sri Jagadeesha B.K., S/o Kenchaveerappa B.E., Aged about 32 years R/at Marabbihal Hagaribommanahalli Taluk Bellary District-583 101.
(By Sri H.P.Leeladhar, Advocate) AND :
State by Koppa Police Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001 (By Sri Thejesh P., HCGP) … Petitioner … Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment dated 14.07.2015 passed by the Principal Sessions Judge, Chikkamagaluru in Crime No.374/2013 and to set aside the judgment dated 09.10.2013 passed by the Civil Judge and JMFC, Koppa in C.C.No.525/2008 by allowing this petition.
This Criminal Revision Petition having been heard and reserved on 23.09.2019 coming on for pronouncement of Orders this day, the Court made the following:-
O R D E R This petition is filed by the accused challenging the judgment passed by the Principal Sessions Judge, Chikkamagaluru in Criminal Appeal No.374/2013, dated 14.7.2015 by confirming the judgment and order of conviction and sentence passed by the Civil Judge and JMFC., Koppa in CC.No.525/2008, dated 9.10.2013 for the offences punishable under Sections 420, 465, 468, 471 of IPC.
2. I have heard the learned counsel for the petitioner-accused and the learned HCGP for the respondent-State.
3. The factual matrix of the case of the prosecution is that by producing fake marks card, the accused got selected for the post of Hindi Teacher. The BEO of Koppa lodged a complaint. Police after investigation, laid the charge sheet. Thereafter the learned Magistrate secured the presence of the accused, heard him regarding charge and framed the charge. The same was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. As such the trial was fixed.
4. In order to establish its case, the prosecution, got examined 9 witnesses and got marked 21 documents. Thereafter, accused was examined under Section 313 of Cr.P.C. Neither he has led any evidence nor he got marked any documents on his behalf. After hearing both the parties and on considering the entire material on record, the trial Court convicted the accused. Aggrieved by the same, the accused-petitioner herein preferred the appeal before the appellate Court, which came to be dismissed by confirming the judgment and order of the trial Court.
5. It is the submission of the learned counsel for the petitioner-accused that there is a delay in filing the complaint. After joining as Hindi Teacher, the accused- petitioner completed the probationary period and on the basis of the said marks card, he joined B.Ed. course and completed the same. Even then there were no complaints. The document in question was not referred to the Forensic Science Laboratory to ascertain as to whether it is a genuine document or not and whether the signatures found were that of the Principal of the College or not. Neither the Principal of the college who has issued the said certificate nor the Nodal Officer of the Board were examined. It is his further submission that the accused was not having any knowledge of creation of the said document. It was not within his knowledge as to who actually prepared the said document. But he obtained the said document from the college authority. It is his further submission that it is the prosecution which has to prove that the petitioner-accused knew that before the said marks card was a fabricated document and by knowing fully well about the said aspect, he used the said document. In the absence of the same, the accused cannot be convicted for the offences alleged against him. In order to substantiate his contention, he relied upon the decisions in the case of Dasrathlal Chandulal Joshi Vs. State of Gujarat, reported in AIR 1979 SC 1342; in the case of Govindareddy M.R. Vs. The State of Karnataka in Criminal Revision Petition 1063/2010, disposed of on 26.7.2017; and in the case of Labhshanker Maganlal Shukla Vs. State of Gujarat reported in AIR 1979 SC 1012. It is his further submission that the Director has also not been examined to substantiate the case of the prosecution. Accused has produced the marks card at Ex.P16 received from the college where he completed his PUC. Even one R.Govardhan who has signed the document, has been examined and he has not supported the case of the prosecution. The trial Court ought not to have compared Exs.P16 and P19 and erroneously by relying upon such documents has convicted the accused. It is his further submission that at the time of joining the service and at the time of interview the documents are going to be verified with reference to authenticity, but subsequently some foul play has been played to remove the petitioner from the service. It is his further submission that the prosecution has to establish its case with cogent, reliable and admissible evidence. Without proof of the same, accused cannot be convicted for the alleged offences. On these grounds, he prayed to allow the petition and to set aside the impugned judgments and orders passed by the Courts below.
6. Per contra, the learned HCGP vehemently argued and submitted that PWs.1 to 3 have fully supported the case of the prosecution. It is not in dispute that the accused has studied in the said college. The prosecution has produced Ex.P19, the result sheet which clearly indicates that the accused has not got through the exam and has failed. Under such circumstances, the question of issuance of the marks card declaring him as passed as per Ex.P16 does not arise at all. The said aspect itself establishes the fact that the accused by using the fake marks card has got appointed as Hindi Teacher. It is his further submission that while submitting his application for appointment, the petitioner was knowing and it was within his knowledge that marks card at Ex.P16 is fabricated and the said aspect has been proved by the prosecution. It is his further submission that Ex.P19, the result sheet which shows that the petitioner-accused has failed, has not been challenged and nowhere it has been suggested that in which year he has passed subsequently. Under such circumstances, the only inference that can be drawn is that it is a fake document and only with an intention to cheat the Government and to deprive the suitable candidate by cheating the appointing authority he obtained the job. The trial Court after considering the entire material on record, has rightly convicted the accused. Hence, no good grounds are made out by the petitioner-accused so as to interfere with the impugned judgment and order. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties. Perused the records including the original records secured in this case, gone through the decisions quoted by the learned counsel for the petitioner-accused and evidence of the prosecution.
PW.1, BEO who speaks about the selection of the petitioner-accused as a Hindi Teacher and his posting to Government Higher Primary School at H.Hosur. PW.1 has further deposed that he has given the certificates to the police at the time of investigation. During the course of cross-examination, nothing has been elicited so as to discard his evidence.
PW.2 is also BEO who has deposed that accused has been selected as a Hindi Teacher. He reported for duty and produced the marks card and other documents for verification. Thereafter PW.2 has sent PUC marks card and other documents of the petitioner to PU Board and a letter was received from the PU Board on 22.6.2007 intimating that the said marks card at Ex.P16 is not issued by the Board and the same is a fake document. Immediately on the very day, i.e., on 22.6.2007, he filed first information as per Ex.P14 and sent Ex.P16 for verification. During the course of cross- examination, nothing has been elicited so as to discard his evidence.
PW.3 is the Joint Director of Education Department. He has deposed about the posting of the petitioner as Hindi Teacher. He has further deposed that he has sent the selection list and appointment order including the original PUC marks card and other documents of the petitioner to the concerned BEO. He has further deposed that accused has studied in H.P.S. PU College, Harapanahalli and he has received the marks sheet as per Ex.P19 from the Principal of the said College.
PW.4 is the FDA who has deposed that the marks card and other documents produced by the petitioner- accused were sent to PU Board for verification and subsequently he came to know that the said marks card is fake one.
PW.5 was the Head Master during the year 1999- 2007, before whom the petitioner-accused reported for duty. From 25.6.2007 to 27.6.2007, the accused was on C.L. and thereafter he has not worked in the school.
PW.6 is the Joint Director of PU Board who has not supported the case of prosecution and has been treated as hostile.
PW.7 is the ASI who recorded the statement of the some of the witnesses.
PW.8 is the Police Inspector who received the complaint, registered the case and issued the FIR.
PW.9 is the Police Inspector who investigated the case and filed the charge sheet as against the accused.
8. The main contention of the learned counsel for the petitioner-accused is that the accused was not having any knowledge about the document which was forged. The said document has been issued by the Principal of the College, whatever the document which was issued has been taken by the petitioner-accused and as such the trial Court was not justified in convicting the accused. For the purpose of brevity I quote Section 471 of IPC, which reads as under:-
“471. Using as genuine a forged document or electronic record.- Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”
9. On close reading of the aforesaid Section, it is clear that accused must know or has reason to believe. Meaning of ‘knowledge’ or ‘reason to believe’ is nothing but the accused is aware of and it was within his mind. ‘Reason to believe’ means it is a higher level of state of mind. Likewise, ‘knowledge’ will be slightly on a 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. A person must have reason to believe if the circumstances need not necessarily be capable of absolute conviction or inference, but it is sufficient if the circumstances are such as creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. Under such circumstances, it can be held that he was having knowledge or knows or has reason to believe to be forged document. The interpretation of the above said words ‘knowledge’ or ‘reason to believe’ came up before the Hon’ble Supreme Court in the case of A.S.Krishnan and Others Vs. State of Kerala, reported in (2004)11 SCC 576, wherein at paragraph-10, it has been observed as under:-
“10. 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 as 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 v. State of Haryana [1993 Supp (2) SCC 497 : 1993 SCC (Cri) 691 : AIR 1993 SC 1167] .) 10. Keeping in view the aforesaid proposition of law and meaning, if the factual matrix of the present case is looked into, Ex.P16 is the certificate obtained by the accused from Department of Pre-University Education. The said certificate though contained the seal of the Director, in so far as below the signature of the Principal is concerned, no seal of the college has been put, but it has been got typed. In no case, the Board of Pre- University Education will type the address of the college, it is the college which is going to put the seal on the said certificate. Be that as it may, prosecution has also got produced Ex.P19, the result sheet issued by the Pre-
University Education Board for April, 2001. Ex.P16 has been issued showing the result date as 9.6.2001. But the result sheet shows that the result has been announced in April, 2001 and it also contains the seal of the Principal along with signature. The name of the accused has been shown with Regn.No.411724 and the result of the accused indicates as ‘failed’. When the accused has failed in the examination, then under such circumstances, it can be inferred that the document produced by the accused to obtain a job as Hindi Teacher relying upon Ex.P16 is forged and concocted document. During the course of arguments, though it is argued by the petitioner’s counsel that the burden lies upon the prosecution to establish that the accused knew or had reason to believe that the document was a forged one and he must have used the forged marks sheet, if Ex.P19 is seen, the result of the petitioner-accused shows that he has not succeeded in the examination. If he has not succeeded in the examination, then under such circumstances, it can be held that it was within his knowledge that he has not succeeded in the examination conducted during April, 2001. When the candidate has not succeeded in the examination, then under such circumstances, the question of issuing the said certificate by the concerned college or by the Board, does not arise at all. Even the accused has not made out any case as to from whom he received the said certificate and subsequently, he got produced the same for the purpose of continuing his studies of B.Ed. Course and also by relying upon the said document, he got appointed. The essential ingredients of Section 471 of IPC are that fraudulent or dishonest use of document as a genuine and knowledge or reasonable belief on the part of the person using the document that it is a forged one. The scope of the said Section is to apply to persons other than the forger himself, but the forger himself is not excluded from the operation of the section. When a person who has not forged the document and used the same as a genuine document by knowing fully well that it is a forged document, then under such circumstances, it can be held that the prosecution has proved that the said forged document has been used by the accused with knowledge or reasonable belief. This proposition of law has also been laid down in the case of A.S.Krishnan and Others Vs. State of Kerala (cited supra) At paragraph-8 of the said decision it has been observed as under:-
“8. The essential ingredients of Section 471 are: (i) fraudulent or dishonest use of document as genuine, and (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 the 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 a voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that the accused knew or had reason to believe that the document was a forged one. Whether the accused knew or had reason to believe the document in question to be forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual.”
11. On going through the aforesaid ratio and the documents at Exs.P16 and P19 it clearly goes to show that the accused has used the said document with knowledge or with reasonable belief and used it as genuine one. In that light, the petitioner-accused is liable to be convicted. When once the prosecution establishes that Ex.P16 is a forged document, then under such circumstances, burden of proof shifts upon the accused to establish the fact that the said document produced at Ex.P16 is a genuine document. Only because of the reason that the said document has come from the possession of the petitioner-accused, it is for the person who is in possession to explain the said aspect. If he fails to do so, then under such circumstances, the accused is also liable to be convicted for the offence punishable under Section 471 of IPC. This proposition of law has been laid down in the case of Anil Rishi Vs. Gurbaksh Singh, reported in (2006) 5 SCC 558, wherein at paragraph-19, the Hon’ble Apex Court has observed as under:-
“19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”
12. It is the specific contention of the learned counsel for the petitioner-accused that the prosecution has to prove that the petitioner had knowledge before he used the document in question for his benefit. In order to substantiate his argument, he relied upon the decision in the case of Dasrathlal Chandulal Joshi Vs. State of Gujarat (cited supra). It is further contented that the prosecution has not got produced any records to show that by using forged marks card, accused induced anyone to deliver any property to any person. In order to substantiate the said contention, he relied upon the decisions in the case of Sri Govindareddy M.R. Vs. The State of Karnataka and in the case of Labhshanker Maganlal Shukla Vs. State of Gujarat (cited supra).
13. On going through the evidence produced by the prosecution, PW.2 has clearly deposed that the accused has produced PUC Marks card along with other documents and he sent them to PU Board for verification and subsequently it has been reported that the said marks card is not issued by the Board and the same is a fake document. During the course of cross-examination of this witness, nowhere it has been suggested that the accused has not produced PUC marks at Ex.P16 for the purpose of securing the appointment. Though PW.6, the Joint Director of PU Board has not supported the case of the prosecution, the evidence of PW.2 and Exs.P16 and 19 if they are perused, they clearly go to show that the petitioner-accused has not succeeded in PUC examination. Ex.P19 shows that the accused has failed in the PUC examination by obtaining the marks in respect of Kannada paper 72; English paper 39; Physics 23;
Chemistry 15; Biology 29; and Mathematics 03. The total marks obtained by the accused is 181. But in Ex.P16, for respective subjects, it has been shown as 65, 60, 75, 75, 93 and 88, in toto 456. From the said statement, it makes very clear that though the accused has failed in the said examination, Ex.P16 shows that he has cleared all the subjects with distinction. The accused has produced the marks card and other documents for verification. When he produced the same, it is he who has to explain as to when he got through in PUC examination. Accused has offered no explanation in this behalf. When all the digits in the result sheet have been changed and in the absence of any explanation by the accused, the only inference which can be drawn is that the said document has been forged for the purpose of cheating and obtaining the job and also for the purpose of further studies. In that light, all the ingredients of Sections 468, 471 and 420 of IPC are attracted. In that light the contention of the learned counsel for the petitioner-accused does not stand to any reason and the same is not acceptable 14. I have carefully and cautiously gone through the judgments and orders of the trial Court as well as the appellate Court. After discussing in detail, the Courts below have come to a right conclusion. When there are concurrent findings recorded by the Courts below, based upon the evidence and if they are not suffering from any perversity, then under such circumstances, this Court cannot interfere with such orders. The said proposition of law has also been laid down by the Hon’ble Apex Court in the case of S.M.Katwal Vs. State of Himachal Pradesh, reported in (2018) 14 SCC 272. In the light of the said discussion, the contention of the learned counsel for the petitioner that the petitioner was not having any knowledge and it was not within his knowledge as to who issued the said certificate, cannot be acceptable. Even the petitioner-accused was fully aware of the fact that he has failed in the examination at the time when he produced Ex.P16. Under such circumstances, it cannot be even presumed that he was not having any knowledge or he had no reason to believe that the said document was forged one. Without his knowledge such document cannot be made use of. It is not in dispute that when the candidates come to know about their results through the result sheet, they go through the same and thereafter they obtain their respective marks cards. Prosecution is having an initial burden to prove the case, but when once it has been proved by the prosecution, then the onus shifts upon the accused to rebut the same by cogent and acceptable evidence. In this behalf, if the provisions of Sections 101 to 110 of the Indian Evidence Act are perused, it can be held that the petitioner-accused has not rebutted and proved his burden and when he fails to do so, it is said that the case of the prosecution stands proved.
15. Now-a-days producing the fake marks cards and other documents for getting the Degrees or appointments is increasing. If such fraud and misrepresentation are encouraged, then under such circumstances, the educational system itself is going to be toppled and every one lose faith in the system itself. Especially meritorious students will be deprived of their future because of this intermediate persons. When such forgery and misrepresentation are not noticed by the concerned authority, the said persons will complete their service by depriving the meritorious students. Now this country is progressing with high attitude and high qualifications. But this type of persons will be the black spots to the said system and they will be bringing down the reputation and dignity of not only the institution, but the country as a whole. Whenever such type of cases were found and brought before the Court, the Court must take them seriously and they should be dealt with iron hands, no sympathy or mercy should be shown. If such persons are dealt by the Courts properly, it should send signal to such type of persons that they should not venture for such frauds and they will not be easily taken. In that light, I am of the considered opinion that the conviction and sentence passed by the trial Court are liable to be confirmed by observing that the concerned institution/authority where the petitioner-accused is employed subsequently, has to take appropriate steps and to see whether he has played any such fraud and obtained his subsequent job in the said institution.
16. I have carefully and cautiously gone through judgments and orders passed by both the Courts below. The Courts below after considering the material and the entire evidence on record have come to a right conclusion and rightly convicted the petitioner-accused. The impugned judgments and orders are neither perverse nor illegal. Hence, they are confirmed.
Petition being devoid of merits is liable to be dismissed and accordingly, the same stands dismissed.
Trial Court is directed to issue conviction warrant to serve the sentence.
Sd/- JUDGE *ck/-