IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.242/2017 BETWEEN:
Sri K.C.Harish S/o Sri Chandregouda Aged about 43 years Occ: Merchant R/o. Jog Workman Block Sagar Taluk-577 435, Shivamogga District.
(By Sri S.P. Kulkarni, Advocate) AND:
The State of Karnataka by Jog Police, Shivamogga District, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri. M. Divakar Maddur, HCGP.) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C. praying to set aside the order of conviction and sentence dated 31.05.2013 made in C.C.No.117/2009 passed by the Senior Civil Judge and JMFC, Sagar, in so far as it relates to Section 447 of IPC concerned and set aside the order of conviction and sentence dated 09.01.2017 passed by the V Additional District and Sessions Judge, Shivamogga, Sitting at Sagar in Criminal Appeal No.205/2013 for the offences punishable under Sections 447, 468, 471, 473, 474 and 420 of Indian Penal Code and consequently acquit the petitioner herein for the said offences.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Court of V District and Sessions Judge, Shimoga sitting at Sagar in Crl.A. No.205/2013 dated 09.01.2017 whereunder the judgment and order of acquittal passed by Senior Civil Judge and JMFC, Sagar in C.C. No.117/2009 dated 31.05.2013 was reversed and the accused is convicted for the alleged offence.
2. I have heard Sri. S. P. Kulkarni, learned counsel for the petitioner and Sri. M. Divakar Maddur, learned High Court Government Pleader for respondent - State.
3. The factual matrix of the case as per the case of the prosecution is that accused committed a criminal trespass into the property in Katha No.1059 belonging to the K.E.B. in between 28.05.2006 and19.04.2007 and illegally constructed a shed without any license and has fabricated the format of no objection certificate of Pattan Panchayath, Jog-Kargal and put up the unauthorized shed and fabricated the seal of the Kargal Pattan Panchayat and has forged the signature of Chief Officer. On the basis of the fabricated documents, he has obtained electricity connection to the said house and he has cheated the Kargal Pattan Panchayath, MESCOM and the Government. On the basis of the said complaint, a private complaint was registered and a matter was referred under Section 156(3) of Cr.P.C., and on the basis of the reference, police registered a case in Crime No.7/2007 and after investigation, charge sheet has been filed against the accused. Learned Magistrate took cognizance and secured the presence of the accused and after following the formalities, he framed the charge and accused pleaded not guilty. He claims to be tried and as such, the case was fixed for trial.
4. In order to prove the case of the prosecution, it has got examined 16 witnesses and got marked 28 documents. Thereafter, the accused was examined under Section 313 of Cr.P.C. and accused has not laid any evidence and has not got marked any documents.
5. After hearing the learned counsel appearing for the parties, the Court below convicted the accused by its order dated 24.08.2011. Against the said order, accused preferred the appeal. Subsequently, the said matter was remitted back with certain directions. Thereafter, the learned JMFC recorded evidence and after hearing the parties, by order dated 31.05.2013, acquitted the accused for the offences punishable under Sections 468, 474, 473, 474 and 420 of IPC and convicted the accused for the offence punishable under Section 447 of IPC. Being aggrieved by the said judgment, the State has preferred the appeal. The Appellate Court has allowed the appeal and set aside the impugned order and convicted the accused for all the offences. Challenging the same, the petitioner/accused is before this Court.
6. The main grounds urged by the learned counsel for the petitioner/accused are that findings given by the First Appellate Court and convicting the accused and sentencing him is not in accordance with law. It is his further submitted that the trial Court considering all the evidence and by taking the issues separately for each Section, has come to a right conclusion and has rightly acquitted but the First Appellate Court erroneously has observed that no such specific finding has been given on each of the offences. It is his further submitted that only on the ground that the accused has convicted for the offence punishable Section 447 of IPC and the said offence has been proved without there being any sufficient and cogent evidence to prove the ingredients of other Sections, the Court below has erroneously come to the conclusion that the offence under other Section has been proved and has wrongly convicted. It is further submitted that the Court below has not properly appreciated, who forged the said documents and who created the document. All the materials were not there and the said aspect has not been looked into and has wrongly convicted the accused. He further submitted that the evidence of PWs.8 and 9 has not been properly appreciated. It is his further submission that there is a delay in filing the complaint that aspect, has also not been looked into by the Court below. It is further submitted that the Investigating Officer and other witnesses have also admitted similarly that similar seal is not always used, they used to use changed seal. In-spite of such evidence, the Court below has come to the conclusion that Ex.P10 is a forged document and has wrongly convicted the accused. It is further submitted that the hand writing expert has not given his specific opinion to the effect that the said hand writing is belonging to the accused. In the absence of any such material, the Court below ought not to have convicted the accused. It is further submitted that the trial Court after discussing the matter in detail, has exercised its discretion and has acquitted the accused. But the Appellate Court must be very slow in interfering with the acquittal order and re- appreciation of the evidence. Without keeping in view the said fact, erroneously allowed the appeal and convicted the accused. It is further submitted that the material produced is not sufficient to bring home the guilty of the accused and as such, the trial Court has given benefit of doubt. In that light, the accused is entitled to be acquitted. On these grounds, he prayed to allow the appeal and to set aside the impugned order and to acquit the accused.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that there is sufficient evidence to show that the accused has trespassed into the land belonging to KEB and has illegally constructed the house. It is his further submission that he has trespassed into the property and after considering the said evidence, the Court below has rightly convicted the accused under Section 447 of IPC. It is his further submission that PW.1 is the official of panchayath. He has clearly deposed in the evidence that Ex.P10 is the forged document and it does not bear his signature. It is further submitted that the other witness and the hand writing expert has also clearly opined that the said hand writing is not of the person, who is authorized to sign the said document. In the absence of any explanation by the accused, the only presumption which has to be drawn is that, it is accused, who fabricated and forged the signature and produced the same before the MESCOM and has obtained no objection certificate for getting the connection of electricity to his illegally constructed shed. It is further submitted that all the material, which has been produced has clearly appreciated by the First Appellate Court and thereafter, it has come to the right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the petition as it is devoid of merits.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. It is not in dispute that the accused has been held guilty for the offence punishable under Section 447 of IPC and the Court below has convicted the accused to pay a fine of Rs.500/- with default sentence to undergo simple imprisonment for 30 days. The said order has not been challenged by the accused and it has been confirmed in this behalf. Insofar as conviction held in this regard as against the petitioner/accused is concerned, it is not in dispute. It is the specific case of the prosecution that the accused has illegally constructed a shed and by forging and fabricating no objection certificate of Jog-Kargal Pattan Panchayath, has produced the same and has obtained electricity connection and subsequently it was noticed that the said document Ex.P10 is forged document.
10. In order to establish the case of the prosecution, it has got examined 16 witnesses. PW.1 is the official of Kargal-Jog Pattan Panchayath. In his evidence, he has deposed with regard to the construction of the house and in order to obtain the electricity connection, the accused has produced the no objection certificate and he has further deposed that on perusal of the same, he came to know that no objection certificate is not issued by his office and the signature is also not of him. During the course of cross-examination of this witness, he has admitted that the specimen at Exs.P10 and P11 are one and the same. He has also admitted that in order to obtain no objection certificate from the said Panchayath, an application has to be given to the concerned dispatch clerk. In order to give such application, the applicant must have a khatha of a particular site. Other suggestions which have been made are denied. He has further deposed that he is not able to say, who has signed the Ex.Q1 signature on Ex.P10. He has admitted that the house, where the accused is residing is within the pattan panchayath limits. He has also admitted that like accused constructed the house, there are 100 houses constructed within the pattan panchayath limits. He has further deposed that he cannot definitely say, who has prepared Ex.P10 and one Anandrao was the clerk in the said panchayath and he has further deposed that who is the head, who signed on Ex.P10 is not known to him. Apart from that, nothing has been elicited from the mouth of this witness.
11. PW.2 is the Former President of the said panchayath. He has also reiterated the evidence of PW.1. During the course of cross-examination, he has admitted the fact that he cannot say in between Exs.P10 to P11, which is the original.
12. PW.3 is the member of Jog-Kargal Pattan Panchayath. He speaks about the initiation of the proceedings as against the accused and he has also stated that Ex.P11 is the specimen and he cannot say definitely which is the forged one by seeing them.
13. PW.4 is the Assistant Engineer working in MESCOM. He speaks about the accused filing of an application for giving electricity connection as per Ex.P16 and he has given no objection certificate as per Ex.P10 and there was an agreement entered into between the MESCOM and the accused as per Ex.P17. During the course of cross-examination, he has deposed that after verifying the documents given by the accused, the junior Engineer in-charge will issue the orders and he will install the electricity to the said house.
14. PWs.5 and 6 are the mahazar witness to Ex.P19. They have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross-examination, nothing has been elicited so as to substantiate the case of the prosecution.
15. PW.7 is the in-charge Engineer. He speaks about the accused giving an application dated 25.06.2006 and he identified the signature of him on the said application. He has further stated that he has given Ex.P10 along with said application and as per Ex.P18, the permission has been granted and Ex.P17 is the agreement entered into between the MESCOM and the accused. During the course of cross-examination, he has deposed that after verifying the application and after coming to know that everything is correct, the said electricity connection is going to be given. He has further deposed that after the contractor and the accused came and given the no objection certificate, he came to know about the said fact.
16. PW.8 is the Second Division Assistant working in the Panchayath office. As per the instruction of PW.1, he went to the police station along with seal and format of no objection certificate. He has also deposed that he had produced Ex.P11. He has filled the format as per Ex.P11. In his evidence, he has deposed that how Ex.P10 come to the hands of the police is not known to him. He has further deposed that whenever a person apply for leave and at that time, a in-charge person can also give the no objection certificate by writing the same. He has further deposed that Ex.P10 might have written by such in-charge person or it may not be also.
17. PW.9 is the mahazar witness to Exs.P10 and P11.
18. PW.10 is also a mahazar witness to Ex.P9 and he has not supported the case of the prosecution and he has been treated as hostile.
19. PW.11 is also a witness to Exs.P4 to P9 photographs and he has not supported the case of the prosecution. He has deposed with regard to drawing of a mahazar as per Ex.P3.
20. PW.12 is the Electric Contractor. In his evidence, he has deposed that he has signed Ex.P16 and he identified the signature of the accused. He further deposed that to the house constructed by the accused, he has done the wiring and in pursuance of Ex.P16, department has issued permission certificate as per Ex.P18 and an agreement has been entered in terms of Ex.P17. He has deposed during the course of cross- examination that in pursuance of no objection certificate, he will give the electrical connection to the said house.
21. PW.13 is the Scientific Officer, who examined the disputed signature and admitted the signature of the accused.
22. PW.14 is the ASI, who registered the case and has issued the FIR as per Ex.P29.
23. PW.15 is the PSI, who partly investigated the case.
24. PW.16 is the Investigating Officer, who investigated the case and filed the charge sheet against the accused.
25. I have carefully and cautiously gone though the said evidence.
26. It is the case of the prosecution that in order to obtain electricity connection to the said construction by the accused, accused forged Ex.P10 – no objection certificate and obtained the electricity connection. When the prosecution has alleged against the accused that he has forged the signature and the seal of no objection certificate, then under such circumstance, heavy burden lies upon the prosecution to establish that the said Ex.P10 is a forged document. Section 463 of IPC speaks about the forgery and the Section 464 deals with the false document or production of the false document. For the purpose of brevity I quote the said Sections, which read as under:
“463. Forgery. - Whoever makes any false documents or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document.- A person is said to make a false document or false electronic record-
First- Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, With the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration.”
27. On close reading of the said Sections, the prosecution has to prove that Ex.P10 document is forged by the accused. In order to prove the said fact, the prosecution has produced Ex.P10 and Ex.16, the application submitted by the accused. In order to prove the case of the prosecution, it has got examined the material witness PW.13 – the Expert, who has examined the admitted signature and the disputed signature and seal found on Ex.P10. In his evidence, he has stated that Exs.P20 to 22 and P25 to P27 are the disputed hand writing and he examined and admitted hand writing also he has stated that Exs.P23 and P24 are the specimen signatures but he has further deposed that he cannot give specific evidence, whether the said signatures found on Exs.P10 and P11 are that of the accused. He has further deposed that Exs.P23 and P24 are not the admitted signatures of the accused. The Investigating Officer has not obtained specimen signature of the accused at the time of signing Exs.P10 and P11 and sent to the FSL. He has further deposed that many persons in the office can write with similar to Exs.P10 and P11 and the disputed signature not be done by the person, who has given the specimen signature.
28. On perusal of the entire evidence of the prosecution, it does not disclose that the accused forged the signature found on Ex.P10.
29. It is the specific case of the prosecution that the accused has forged the signature of PW.1 but nowhere PW.1 in his evidence deposed that during the course of investigation, the specimen signature of him was taken and the same was sent to the expert.
30. Be that as it may. Even PWs.3 and 4 have admitted in their evidence that in case if the person has applied leave and in-charge person is there, then he can also issue the no objection certificate for the purpose of electricity connection.
31. In that light, if the entire material evidence looked into including the evidence of Expert, the mere production of Ex.P10 before the MESCOM in order to obtain the electricity connection, it does not mean that the accused alone forged the signature of chief officer and has fabricated the document.
32. Be that as it may. Even as could be seen from the evidence of other witnesses including the Contractor-PW12 he has also deposed that he has done the wiring to the said shed and in pursuance of the application permission has also been granted as per Ex.P18 and a contract agreement has also been got executed as per Ex.P17. If really the said document is a forged document, then at the time of verification they could have noticed that the said document is the forged document.
33. As could be seen from the evidence of PW12 he and the accused went to the office to give the application. The said fact has also been deposed by PW4 in his evidence to the effect that accused and the contractor came and they submitted the application. What is the role played by him in the said office has not been clearly brought on record. When the prosecution has utterly failed to prove that the said signature has been forged by the accused and the seal has been fabricated, then under such circumstances it can be clearly held that the ingredients of Sections 463 and 464 of the Indian Penal Code have been clearly established by the prosecution. In that light, the first appellate Court without looking into the said aspects has wrongly come to a wrong conclusion.
34. In order to convict the accused under Section 471 of IPC the prosecution has to clearly establish that the accused was having a knowledge and reason to believe that the said document is a forged and fabricated document and thereafter the same has been used. In order to substantiate the said fact the said ingredients have not been clearly established by the prosecution. In that light also the conviction passed under Section 471 of IPC is not sustainable in law.
35. The another aspect of the matter is that a distinction exists between burden of proof and onus of proof. The right to begin follows onus prabandi. 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 prosecution only if the said burden is proved, then the onus shifts upon the accused to rebut the said presumption by the circumstances with which he wants to distinct. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Anil Rishi Vs. Gurbaksh Singh, reported in (2006) 5 SCC 558, wherein at paragraph 19 it has been 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.”
36. Keeping in view the above said decision and if the entire material produced is perused, the prosecution has utterly failed to prove its burden and the trial Court after considering all the evidence and material placed on record has come to a right conclusion on discussing on all the points and has rightly acquitted the accused. But the appellate Court has erroneously came to the conclusion that the prosecution has clearly established the fact that the accused has trespassed into the principles of KEB and when the said offence has been proved and the other ingredients are going to be attracted, erroneously has come to a wrong conclusion and has wrongly convicted the accused. Further observation that the motive for commission of such offence is quite obvious that accused was in dire need of electricity connection to the shed constructed by him on the property belonging to MESCOM and nobody will give permit or electricity connection to an unauthorized construction and in that light the accused might have forged Ex.P10 and has come the conclusion that accused cannot escape from the pleading without there being any innocence is not a correct observation.
37. In the light of the discussion held by me above, I am of the considered opinion that the first appellate Court without looking to the evidence and material placed on record has come to a wrong conclusion and has wrongly convicted the accused.
38. In the light of the observation held by me above, the petition is allowed and the judgment passed V Additional District and Sessions Judge, Shivamogga sitting at Sagar in Criminal Appeal No.205/2013 dated 9.1.2017 is set aside and the accused is acquitted for the offences punishable under Section 468, 471, 473, 474 and 420 of IPC. Insofar as conviction for the offence under Section 447 of IPC is concerned, the same is confirmed.
* The trial Court is directed to refund the fine amount deposited by the appellant herein.
Sd/- JUDGE VBS/AP * Inserted vide Chamber order dated 16.01.2020