THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case Nos. 1750 and 1752 of 2004 Common Judgment: Since both the revisions arise out of the common judgment, they are being disposed of by this common judgment. Criminal Revision Case No.1750 of 2004 is filed by the petitioner/A2 and Criminal Revision Case No.1752 of 2004 is filed by the petitioner/A1 against the judgment dated 08.10.2004 passed in Criminal Appeal Nos.227 and 228 of 2000 respectively by the learned I Additional District Judge, West Godavari, Eluru, confirming the judgment dated 21.09.2000 passed in C.C. No.416 of 1995 by the II Additional Judicial Magistrate of First Class, Kovvur, whereby and whereunder the petitioners/A1 and A2 were found guilty for the offences punishable under Sections 468, 471 and 420 IPC and convicted and sentenced them to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for three months for the offence under Section 468 IPC and also to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for three months for the offence punishable under Section 471 IPC. No separate sentence was passed against them for the offence under Section 420 IPC as they were sentenced for the offences under Sections 468 and 471 IPC and both the sentences were ordered to run concurrently. The petitioners herein will be referred to as accused Nos.1 and 2 for the sake of convenience. The brief facts of the case are as follows. A1 and A2 were working as Teachers in Zilla Praja Parishad School, West Godavari District. PW.2 N. Krishna Mohan Sen was working as Mandal Development Officer, Devarapalli, during relevant period under whom A1 and A2 were working. The specific case of PW.2 is that A1 and A2 brought one appointment order and one transfer order and, accordingly, he implemented those orders. Subsequently, one Navaratnam approached him and informed that though he received the transfer order he was not going to join in Devarapalli Mandal as a Teacher, as the said transfer order was a fictitious order. According to PW.2, then he made enquiries with the District Development Officer and came to know that the said orders were fictitious orders and that no such orders were issued from the office of the District Development Officer. Then, he placed A1 and A2 under suspension. PW.1 was working as District Development Officer, West Godavari District at Eluru. According to PW.1, he received a complaint from PW.2 stating that certain mutual transfer orders of certain teachers were received by him and sought clarification whether the said transfer orders were genuine or not. According to PW.1, then he verified from the office records and came to the conclusion that those transfer orders were not genuine. Then they found that both A1 and A2 were responsible for issuing of such forged transfer orders. Then, he directed PW.2 to take disciplinary action against A1 and A2, vide his letter Ex.P1 dated 11.08.1989. Then, PW.2 issued suspension orders in Ex.P2 suspending both A1 and A2. Against the said orders, both the accused approached the A.P. Administrative Tribunal (for short ‘the Tribunal’) on 17.10.1989, and the Tribunal set aside the said orders holding that the Mandal Development Officer (PW.2) was not the appointing authority and as such he was not competent to suspend A1 and A2 and therefore the suspension orders were not valid. Then, PW.1 himself, in the public interest, issued orders suspending both the accused and ordered enquiry against them. Ex.P4 is the said suspension orders. According to PW.1, in the meanwhile, the accused produced an order purported to have been issued by this Court on 14.12.1989, observing that the suspension orders were not maintainable. Then PW.1, acting upon the said order purported to have been issued by this Court, revoked the suspension orders. However, he entertained a doubt with regard to genuineness of said orders, and therefore, he contacted the Government Pleader for Education of High Court of Andhra Pradesh and sought clarification. On 06.01.1990 PW.1 received a letter from the Government Pleader for Education in Ex.P6 confirming that no such orders were passed by this Court. The Deputy Registrar of this Court also issued a letter dated 15.01.1990 confirming that no such orders were issued by this Court. Ex.P7 is the letter written by the Deputy Registrar of this Court to the Government Pleader for Education, a copy of which was marked to the District Development Officer, West Godavari District. In the above circumstances, PW.1 lodged a complaint against the accused to the police on 16.02.1990. Then PW.1 was examined by the police. During cross-examination PW.1 categorically deposed that Ex.P5 i.e., the forged order said to have been issued by this Court, was handed over to him by the accused in person. According to PW.2, after the suspension orders issued by him were set aside by the Tribunal, PW.1 himself issued orders suspending A1 and A2. According to him, then he received orders purported to have been issued by this Court revoking the suspension and according to him he too contacted the Government Pleader and then he was also informed by the said Government Pleader that no such orders were issued by this Court. PW.3 is the SI of Police who registered the case in Crime No.22 of 1990 under Sections 420, 468 and 471 IPC and issued FIR Ex.P10. He took up investigation, examined some of the witnesses and filed charge sheet against the accused. He deposed that he had seized the letter written by the Government Pleader from PW.1. However, according to him, one V.V. Subrahmanya Raju informed him that they received the copy of the orders from this Court through tappal. He had also admitted that he did not examine the Government Pleader and the then Deputy Registrar of this Court who issued the letter confirming that Ex.P5 was forged copy of order. According to PW.4, he filed charge sheet in this case. The main submission of the learned counsel for the petitioners/A1 and A2 is that the transfer orders purported to have been forged were not produced before the Courts below and they were not marked. It is also their submission that there is no satisfactory evidence adduced by the prosecution to say that Ex.P5 is a forged order purported to have been issued by this Court. Their further submission is that the concerned Government Pleader and the then Deputy Registrar of this Court, who issued Exs.P6 and P7 respectively have not been examined. In the absence of examination of the concerned witnesses, basing on correspondence between the Government Pleader and the Deputy Registrar, no conclusion can be drawn that Ex.P5 is a forged document. Their further submission is that once it is not proved that the document is forged document the accused cannot be convicted under Section 471 IPC. Reliance is placed on a decision reported in Manilal v. State of Kerala[1]. Their further submission is that the signatures and the seal on such document must be proved to be forged. Learned Additional Public Prosecutor supported the impugned judgments. In a case of forgery, it is the duty of the prosecution to initially prove that the document is a forged document. For the purpose of proving whether the document is forged document or not, the concerned authority, whose purported signature is found on the said document must be cited as a witness and he must be examined as a prosecution witness. So that, the authority, who is alleged to have signed on such document should appear before the Court and specifically depose that it is not his signature and that such document was not issued from his office and that it is a forged document. Similarly, the officers, who use the official seal and usual format of such orders, should be cited as witnesses and they must be examined to know whether the order is in the usual format or not and whether the seal pertains to such office or not. In this case both the Courts below, having examined the entire material, came to the conclusion that the format of Ex.P5 itself shows that it is a forged document and that the correspondence between the Deputy Registrar and the Government Pleader for Education proves that Ex.P5 is a forged order. Of course, the correspondence between the Government Pleader for Education and the then Deputy Registrar, prima facie, shows that Ex.P5 is a forged document, but unfortunately, it is an admitted fact that the Investigating Officer has not taken pains either to examine the Government Pleader for Education or the then Deputy Registrar of this Court, who issued the letters confirming that Ex.P5 is a forged document. Merely because there are lapses on the part of the Investigating Officer or that the investigation is faulty or that usual procedure was not followed during the course of investigation, it would not come in the way of the Courts to exercise their powers and to take necessary steps and to summon the concerned witnesses exercising powers under Section 311 Cr.P.C to find out the truth and in the interest of justice. Unfortunately, this was not done by the Courts below. Though the learned Sessions Judge had dealt the issue in detail and given cogent reasons for accepting Ex.P5 as a forged document, but admittedly the concerned persons i.e., the Government Pleader for Education and the then Deputy Registrar of this Court were not examined. Admittedly, the transfer orders, said to have been forged documents, were also not marked in the trial Court and it appears that they were not seized and filed before the trial Court by the Investigating Officer. It is also one of the submissions of the learned counsel for the accused that there is inordinate delay in lodging the complaint to the police and, therefore, the delay is fatal to the prosecution case. The specific case of the prosecution is that PWs.1 and 2 came to know about the forgery on 15.01.1990 itself, but the complaint was lodged one month thereafter i.e., on 16.02.1990 and the prosecution failed to explain the delay. The delay in lodging the FIR to the police is normally fatal to the prosecution case, particularly where there are factions and where there is some enmity between the accused and the de facto complainant and where there is a chance for false implication or changing the initial version of the prosecution. But, where there is no motive to implicate any person in a criminal case and where the concerned officials while discharging their official duty came to know about the forgery and where some time was taken on administrative grounds, it cannot be said that the delay is fatal in such circumstances. What is to be seen is whether any prejudice is caused to the accused or not. Anyhow, since I am inclined to remand the matter to the trial Court for de novo trial, I am not inclined to make any further observations either on merits of the case or with regard to other technical points raised by the learned counsel for the accused. Ultimately justice has to be done not only to the accused but also to the prosecution. Having regard to the facts and circumstances of the case and the evidence on record, and though it appears that the offence took place in 1990 and normally it is not desirable to remand the case for de novo trial after a considerable period, but, considering the gravity and nature of the offence and other circumstances, I consider it just and reasonable to remand the matter to the trial Court for de novo trial. Accordingly, the Criminal Revision Cases are allowed and the conviction and sentences recorded against the petitioners/A1 and A2 are set aside. The matter is remanded to the trial Court for de novo trial. The learned Magistrate, without being influenced by any of the observations made by this Court or by the lower appellate Court, may examine the matter afresh and conduct fresh trial and pass appropriate orders in accordance with law. He may exercise the powers under Section 311 Cr.P.C., if he feels that such exercise of powers is necessary in the interest of justice. ______________________ B. CHANDRA KUMAR, J. Date: 08.07.2010 Nsr [1] 1998 Crl.L.J. 3785