1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL REVISION APPLICATION NO. 445 OF 1999 Shri Kashinath Dattu Kalbhor, age 32 years, occ. Nil, r/o Darewadi, Tq. & Dist. Ahmednaar ...Petitioner (Original accused) VERSUS The State of Maharashtra ...Respondents ..... Shri C.K.Shinde, advocate for the petitioner Shri S.D.Kaldate, APP for the respondent/State ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 22.2.2010 DATE OF PRONOUNCING THE JUDGMENT : 11.3.2010 J U D G M E N T :- 1 This is a Criminal Revision Application preferred by the petitioner (original accused) challenging the legality and correctness of the judgment and order of conviction passed by the learned Judicial Magistrate, First Class, Ahmednagar, on 2 30.6.1997, and also challenging the judgment and order dated 25.11.1999, rendered by III Additional Sessions Judge, Ahmednagar in Criminal Appeal No. 52 of 1997, confirming the said conviction and sentence awarded to the petitioner herein and prays that same may be quashed and set aside. 2 The factual matrix, which can be summarised, is as under. The Chief General Manager of Telephones, Maharashta State issued an advertisement for recruitment to the posts of Telephone Operators, and the applications were invited therefor. The petitioner herein applied in pursuance of the said advertisement and after scrutinizing the applications, he was called for test and interview on 22.2.1990 at Telephone Bhavan, Ahmednagar. He was selected in the test and interview. At the time of scrutiny of the applications, the petitioner produced documents/qualification on 28.4.1990. After selection, he undergone three months training and he was given posting at Kopergaon. As per office rules, the documents produced by the petitioner were sent for verification to the Educational Board on 4.1.1990 and the said documents comprised, Secondary School Certificate, Mark Sheet, School Leaving Certificate and Military 3 Discharge Card. However, during verification, it transpired that the documents produced by the petitioner were forged and he represented the Telecom Department i.e. the complainant that those four documents are genuine documents and accordingly secured job. During his employment, he drew salary to the tune of Rs.30189/- from the Telecom Department for the period from 22.2.1990 to 18.2.1992. In fact, some posts were reserved for Ex- Servicemen and the petitioner applied and secured job in the said category. According to the complainant, the petitioner/accused produced four documents and secured job of Telephone Operator and cheated the Telecom Department. Hence, complaint was filed before L.C.B. Ahmednagar by the complainant, namely Dayaram Kukreja, Assistant Engineer, H.R.D., Telecommunications and District Manager, Ahmednagar and an offence came to be registered at Kotwali police station under C.R.No. 36 of 1993 under Sections 468, 471 and 420 of the Indian Penal Code. 3 During investigation, the police personnel seized the documents which were produced by the complainant under panchanama Exh. 113, as well as recorded statements of witnesses. It was revealed during the course of investigation that the documents viz. Secondary School Certificate, Mark Sheet and School Leaving Certificate produced by the petitioner were forged. 4 Accordingly, after completion of investigation, charge sheet came to be filed against the petitioner and the case was numbered as R.T.C. No. 365 of 1993. The learned Judicial Magistrate, First Class, Ahmednagar conducted the said case and after recording the evidence of witnesses concluded that the petitioner/accused is guilty and convicted him or the offences punishable under Sections 468, 471 and 420 of the Indian Penal Code and sentenced him to suffer S.I. for six months under each count for the afore said offences and directed all the substantive sentences to run concurrently, and further directed to pay fine of Rs.500/- on each count and in default of payment of said fine to suffer S.I. For one month on each count. 4 Being aggrieved and dissatisfied by the said judgment and order, the petitioner/accused preferred Criminal Appeal No. 52 of 1997 before the Sessions Court, Ahemdnagar. However, after scrutinizing and appreciating the evidence as well as after hearing the parties, learned III Additional Sessions Judge, Ahmednagar dismissed the said appeal by judgment and order dated 25.11.1999 and thereby confirmed the conviction and sentence awarded to the petitioner herein. The petitioner (original accused) questions the legality and correctness of both the said judgments and orders rendered by the Trial Court as well 5 as by the lower Appellate Court, in the present Revision Application. 5 Learned counsel for the petitioner urged that the Trial Court committed an error in accepting secondary evidence adduced by the prosecution, although the investigating officer has stated in his deposition that he seized original documents and although prosecution was in possession of the original documents. Thus, according to the learned counsel for the petitioner, there was grave miscarriage of justice due to acceptance of secondary evidence in respect of vital documents in question. Learned counsel for the petitioner further canvassed that, in fact, the prosecution has not sought any permission from the court to lead secondary evidence and in spite of that the learned Trial Court accepted the said secondary evidence adduced by prosecution, although the prosecution was in possession of original documents, and therefore, it is submitted that the Trial Court overlooked the provisions of law, and hence, the judgment and order rendered by the Trial Court convicting and sentencing the petitioner/accused deserves to be quashed and set aside., and consequently, the judgment and order passed by the Appellate Court confirming the same also needs to be quashed and set aside. 6 6 Learned A.P.P. opposed the present Revision Application vehemently and submitted that the original documents including Secondary School Certificate, Mark Sheet, School Leaving Certificate and Military Discharge Card were produced by the petitioner/accused along with the Xerox copies thereof and after verification of the said original documents, Xerox copies were retained on record, which are marked as Exhs. 72 to 75 respectively, and the original documents were returned to the petitioner/accused on 28.4.1990 and his acknowledgment was obtained in that respect on the list marked at Exh77. According to the learned A.P.P., the investigating officer has never seized original documents, but he has seized the Xerox copies thereof, and therefore, original documents were never in possession of the prosecution and same were returned to the petitioner/accused on 28.4.1990 as afore stated. Hence, learned A.P.P. pointed out that the prosecution preferred application Exh. 26 and thereby gave notice to the petitioner under Section 66 of the Indian Evidence Act to produce original documents. However, the petitioner did not produce the original documents. Hence, again prosecution filed application Exh. 29 and the petitioner gave say thereon at Exh.30, but did not produce the original documents. Therefore, the prosecution was allowed to lead secondary evidence. Accordingly, prosecution led the secondary 7 evidence with permission of the court and same was accepted and was believed by the learned Trial Judge and thereby convicted and sentenced the petitioner as afore stated, and therefore, learned A.P.P. submitted that there is no substance in the arguments canvassed by the learned counsel for the petitioner and same is required to be discarded. 7 After scrutinizing the record and proceedings with the assistance of the learned counsel for the petitioner and the learned A.P.P. for the respondent, the record reveals that the documents comprising Secondary School Certificate, Mark Sheet, School Leaving Certificate and Military Discharge Card were produced by the petitioner/accused along with the Xerox copies thereof, as stated by PW5 Shivaji Ghumatkar and the said witness verified the Xerox copies with the original documents and the Xerox copies were retained at Exhs. 72 to 75 respectively, which bear the signatures of the said witness and signatures of his superior officer and also of the petitioner/accused and original documents were returned to the petitioner/accused along with the list and his acknowledgment/signature was obtained on the list which is marked as Exh.77. Thus, according to the record, original documents were returned to the petitioner on 28.4.1990 under his acknowledgment on list Exh.77. Hence, there is no 8 substance in the submission advanced by the learned counsel for the petitioner that prosecution was in possession of original documents. Moreover, it is also revealed from the evidence of investigating officer that he seized Xerox copies of afore stated documents and not the originals, which also supports the afore said proposition. 8 As regards another limb of the argument advanced by the learned counsel for the petitioner, the record reveals that the prosecution has preferred an application Exh.26 before the Trial Court and thereby gave notice to the petitioner/accused under Section 66 of the Indian Evidence Act calling upon him to produce original documents and the Trial Court also passed an order directing the petitioner/accused to produce documents. However, still the petitioner did not produce the said documents. Hence, the prosecution gave another application Exh.29 and revived the said prayer. The petitioner also filed his say thereon at Exh.30. However, when the petitioner did not produce the original documents, the Trial Court allowed the prosecution to lead secondary evidence on 14.3.1996 and since PW5 Shivaji Ghumatkar had occasion to see original documents and tallied Xerox copies thereof, the prosecution led secondary evidence through him and produced Xerox copies of the said documents 9 which are marked at Exhs. 72 to 75 respectively. Hence, in view of the said position, there is no substance in the argument canvassed by the learned counsel for the petitioner that the Trial Court accepted the Xerox copies of documents without granting permission to the prosecution to lead secondary evidence. 9 In the circumstances, after perusal of the record and proceedings and the judgment and order of conviction passed by the learned Judicial Magistrate, First Class, Ahmednagar on 30.6.1997 in R.T.C. No. 365 of 1993 and also on perusal of the judgment and order dated 25.11.1999 rendered by III Additional Sessions Judge, Ahmednagar in Criminal Appeal No. 52 of 1997, I am of the considered view that there is no illegality and perversity in the said judgments and orders convicting and sentencing the petitioner herein. 10 At this juncture, learned counsel or the petitioner urged that the petitioner herein has undergone 26 days in custody, as well as he has already paid fine of Rs.500/- on each count, totalling Rs. 1500/- and considering his present position that he is working as Mason for his livelihood, it is submitted that punishment/sentence inflicted upon him be modified and he be awarded substantial fine instead of imprisonment taking lenient 10 view. 11 Learned counsel for the petitioner further submitted that the powers of the Revisional Court under Section 401 of the Criminal Procedure Code are akin to the powers of the Appellate Court under Section 386 of the Criminal Procedure Code, and therefore, it is submitted that there is no legal impediment in modifying the sentence and fine awarded to the petitioner. 12 In the said context, learned counsel for the petitioner relied upon the following observations made in the case of Shivdas Singh Ajodhya Singh vs King Emperor, reported at AIR (36) 1949 Nagpur 140 (C.N.56). “ The original sentence was 6 months rigorous imprisonment and a fine of Rs.100, or in default of payment a further term of 6 months rigorous imprisonment; the appellate Court reduced the substantive sentence to the imprisonment already undergone, viz. 1 day, and raised the fine awarded from Rs.100 to Rs.600, or in default of payment of the fine a further term of six months rigorous imprisonment. “ 13 Learned counsel for the petitioner also placed reliance on the judgment of Honourable Supreme Court in the case of State of Karnataka vs Marigowda, reported at AIR 1982 SC 1171, 11 wherein, while restoring the conviction, it is observed as under :- “ Having regard to the time that has elapsed, we do not think that it is necessary to send the respondent back to jail. In the circumstances of the case we reduce the sentence of imprisonment to the period already suffered by him but increase the fine imposed upon him by the trial court from Rs. 500/- to Rs.1,750/-. If the amount of fine is realised, it will be paid to the Aladahalli Large Scale Co- operative Society. In default of payment of fine, the accused will undergo rigorous imprisonment for a period of three months. “ 14 Reliance was also placed by the learned counsel for the petitioner on the judgment of this court in the case of The State of Maharashtra vs Harishchandra Tukaram Awatade and ors., reported at 1997 (1) ALL MR 196, in which it is observed as under :- “ Accused were already in jail for about 10 months as undertrial prisoners, hence instead of sending them to jail each of them ordered to pay Rs.10000/- as fine, within a period of six months in the Trial Court, in default to undergo sentence of R.I. for two years. “ 15 As regards the prayer made by the learned counsel for the petitioner in respect of modification of punishment/sentence, learned A.P.P. Submitted to the orders of the court. 12 16 Considering the submissions advanced by the learned counsel for the petitioner in respect of modification of punishment/sentence, there is no dispute that the petitioner was inflicted fine of Rs.500/- on each count for the offence punishable under Sections 471, 468 and 420 of the Indian Penal Code and he has already deposited said fine amount in the court. Moreover, it has come on record that the petitioner earned salary to the tune of Rs.30,189/- for the period from 22.2.1990 to 18.2.1992 and used the said amount for the period of more than 17 years illegally, even though he was not entitled therefor, since he obtained job of Telephone Operator on the basis of forged documents. However, simultaneously, it is to be considered, as canvassed by the learned counsel for the petitioner that the petitioner is working as Mason for his livelihood, as well as the submissions canvassed by the learned counsel for the petitioner/accused that he has undergone 26 days in custody and is ready and willing to pay substantial fine and the substantive sentence awarded to him be modified to the extent of period undergone by him in custody, and considering the observations made in the afore said judgments, I am of the view that the conviction awarded against the applicant for the offence punishable under Sections 471, 468 and 420 of the Indian Penal Code deserves to be maintained, but there is no point in sending 13 the petitioner back to the jail to undergo the remaining part of the substantive sentence out of six months on each count concurrently, and therefore, the sentence awarded to the petitioner of S.I. for six months on each count for the offences punishable under Sections 471, 468 and 420 of the Indian Penal Code is required to be modified to the extent of period undergone by him I.e. 26 days, but instead of the said sentence, fine amount is required to be enhanced to the extent of Rs.50,000/-, in default of payment of said fine amount, he is required to be directed to undergo three months S.I. and if the fine is paid within the stipulated period by the petitioner, the said amount is required to be awarded to the Telecom Department as compensation, which would meet the ends of justice. 17 In the result, present Criminal Revision Application is allowed partly and conviction inflicted upon the petitioner/accused for the offence punishable under Sections 471, 468 and 420 of the Indian Penal Code by the learned Judicial Magistrate, First Class, Ahmednagar by way of judgment and order dated 30.6.1997 in R.T.C.No. 365 of 1993 and confirming the same by the judgment and order passed by the III Additional Sessions Judge, Ahmednagar, on 25.11.1999 in Criminal Appeal No. 52 of 1997 stand confirmed and maintained. However, the sentence awarded 14 to the petitioner to suffer S.I. for six months on each count concurrently is reduced to the period of 26 days which is undergone by the petitioner in custody, and the petitioner is sentenced to the period undergone by him in custody I.e 26 days, but the fine amount stands enhanced and petitioner is directed to pay enhanced fine of Rs.50,000/- in the Trial Court within a period of three months in default to suffer S.I. for three months. If the fine is paid by the petitioner within the period as stipulated above, the said amount be paid to the Telecom Department, Ahmednagar as compensation. (SHRIHARI P. DAVARE, J.) dbm/crira445.99