IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 Crl.Rev.Pet.No. 915 of 2000() ----------------------------- CRA.6/1997 of ADDL. SESSIONS COURT, ALAPPUZHA CC.37/1992 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S)APPELLANT/ACCUSED: --------------------- MATHEW S/O,.XAVIR, PALLIKKAPARAMBIL VEEDU, KANNAI EAST, KUNNUM VIA VILLAGE. BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.A.D.SHAJAN SRI.R.SATISH KUMAR RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. S.I. OF POLICE, PULINCUNNU, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.915 of 2000 -------------------------------------- Dated this the 28th day of May, 2009. ORDER Heard counsel for petitioner and the Public Prosecutor. 2. Petitioner faced trial for offences punishable under Section 465, 466, 471 and 474 of the Indian Penal Code (for short, “the Code”). Charge against him is that he forged Ext.P2, purchase certificate No.742/1977 dated 18.9.1977 in respect of four acres in survey No.444/1R/8 belonging to one Chacko S/o. of Joseph and others and used that purchase certificate as genuine to effect mutation of the property in the Taluk Office on 17.11.1984, got mutation of the property effected in T.P.No.3761 and thereby committed the said offences. Learned magistrate found that prosecution was not able to prove that petitioner committed forgery and thereby committed offences punishable under Sections 465 and 466 of the Code, He was acquitted of those charges. But, learned magistrate found that Ext.P2 is the result of forgery and, knowing it to be so, petitioner used the same as genuine and obtained change of mutation in his name. Following that finding petitioner was convicted for offences punishable under Sections 471 and 474 of the Code and he was sentenced to undergo imprisonment for various periods. In appeal learned Additional Sessions Judge confirmed the conviction and sentence as aforesaid. Hence this revision. 3. It is contended by learned counsel for petitioner that since Crl.R.P.No.915/2000 2 prosecution was not successful in proving that petitioner committed forgery as alleged, conviction under Sections 471 and 474 of the Code cannot be sustained. It is also argued by learned counsel that at any rate there is no evidence to show that petitioner was aware that Ext.P2 is a forged certificate and with that knowledge, used the same as genuine. There is no evidence to show that at the instance of petitioner mutation was effected as alleged by the prosecution. Public prosecutor in response argued that there is no reason to interfere with the concurrent findings entered by the courts below as to the offences punishable under Sections 471 and 474 of the Code. 4. Case, it is stated, was initiated on a complaint preferred by one Antony (CW1) who claimed to have been managing the property on behalf of the alleged real owner. That complaint was addressed to the Director of Vigilance, Thiruvananthapuram. In that complaint, it is stated that in the civil cases between the petitioner and alleged real owner, petitioner claimed right over the property as per Ext.P2, purchase certificate. Enquiry revealed that the purchase certificate is bogus. It is based on that complaint the Police initiated action but ofcourse that complaint is not produced in the court and since CW1 was dead by that time he could not be examined as well. PW1 was the Senior Deputy Collector during the relevant time. PW2 was the Special Tahsildar (Land Records), Alappuzha during the relevant time. PW3 was the Village Officer, Kinakari and PW4 was the Tahsildar in the Revenue Department. PW5 Crl.R.P.No.915/2000 3 was the Land Tribunal, Alappuzha from 22.10.1984 to 30.4.1987. Prosecution has also proved Exts.P1 to P15. As regards the alleged forgery, prosecution was not able to produce the satisfactory evidence and the petitioner has been exonerated from that charge. What then available is that Ext.P2, the purchase certificate bearing No. 742/1977 dated 30.5.1977 said to be issued to the petitioner on 18.9.1978 in S.M.Proceedings No.133/1977 of Land Tribunal, Chambakulam. The purchase certificate in question was issued by CW4, the then Land Tribunal but he could not be examined since the Sub Inspector reported that he is not able to give evidence due to ailment. No commission for his examination was issued since learned magistrate was satisfied from the report of the Sub Inspector that the witness was not able to give evidence. Ext.P2 was not sent to the expert for examination and hence, it was not possible for the court to conclude whether the seal and signature of CW3 in Ext.P2 are genuine or not. Learned magistrate however observed in paragraph 9 of the judgment that even if the seal and signature in Ext.P2 are genuine, it could have been forged if it is issued without authority. Ext.P10(a) is the order as per which Ext.P2, purchase certificate was cancelled. This is proved by PW5. On going through Ext.P10(a) it is seen that after giving notice to the petitioner and the alleged real owner of the property in question, Special Tahsildar (Land Records) conducted an enquiry into the matter and held that “in the light of the evidence discussed above I find that Ext.A1 certificate is not the one issued in Crl.R.P.No.915/2000 4 S.M.133/77 and that by all probability it is a bogus one. It is a certificate of purchase liable to be cancelled. I order accordingly”. 5. Ext.P1 is the purchase certificate in S.M.Proceedings No.133/1977 issued in favour of one Krishnakumari. Exts.P3 and 4 are the final order and S.M.register in the said S.M.Proceedings in favour of said Krishnakumari. PWs 1 and 4 have given evidence that Ext.P2 was not connected with S.M.Proceedings No.133/1977 since that proceedings related to the claim of th said Krishnakumari. Ext.P4 shows that S.M.Proceedings No.,133/1977 relating to Krishnakumari ended in dismissal. Therefore, S.M.Proceedings No.133/1977 referred to in Ext.P2 could not have been correct. The next evidence is that of PWs 2 and 6. Ext.P5 said to be an application preferred by the petitioner to effect mutation on the strength of Ext.P2. Ext.P5(a) is an endorsement made on the strength of Ext.P2. The application was registered as PV 1661/1984 and forwarded to the Village Officer, Kainakari (PW6) for reporting. Ext.P5(b) is the report of PW6. There was some discrepancy in the name of landlord following which petitioner is said to have given Ext.P8, statement to PW5 and based on those materials PW5 effected mutation. 6. For the mere reason that S.M.Proceedings No.,133/1977 is stated to be related to the claim of Krishnakumari and that it ended in dismissal it is not possible to say that with definiteness that Ext.P2, purchase certificate issued in the very same proceedings is a bogus one. Learned magistrate was of the Crl.R.P.No.915/2000 5 opinion that since the signature and seal of CW4 in Ext.P2 was not sent to the expert for examination, the same cannot be said to be not genuine. Unfortunately, CW4 was not available to give evidence. Therefore, it cannot be said that Ext.P2 is a bogus document. The possibility of Ext.P2 being issued in the very same proceedings (allegedly in the name of Krishnakumari) by mistake cannot be ruled out. In fact even in Ext.P10 what the Special Tahsildar who cancelled Ext.P2, purchase certificate found is only that the probability of Ext.P2 being a bogus certificate cannot be ruled out. 7. Then the next question is whether petitioner used Ext.P2 as genuine knowing it to be a forged document. Learned counsel contends that in so far as the prosecution was not able to prove who effected the forgery , conviction under Sections 471 and 474 of the Code cannot stand. A learned Single Judge of this Court in Manilal v. State of Kerala (1998 (2) KLT 101) held so relying on the decision of the Supreme Court in Land Tax Commissioner, Bombay v. Gwalior Rayon Silk Manufacturing Co. Ltd. (1992 SCC (Crl.) 1786). The relevant portion of the decision of the Supreme Court is extracted in Manilal's case thus: “When an accused person has been brought under S.471 IPC, the prosecution ought to have established that a forged document has been used by him as a genuine one. In the absence of the proof Crl.R.P.No.915/2000 6 with regard to the forgery, which is attracted by S.467 IPC then no conviction under S.471 would be based on”. I am unable to accept the argument of the learned counsel that in the absence of evidence as to who effected forgery the charge under Sections 471 and 474 of the Code will not stand. What Sections 471 and 474 of the Code say about is use of forged document knowing it to be genuine. Therefore, in my view what is required to be proved is only the document in question is a forged one to the knowledge of the person who used it and that he used the document as genuine fraudulently and dishonestly. But in this case there is no evidence to show, even if Ext.P2 is concluded to be the result of forgery that petitioner knew the same to be so. There is no evidence to show that petitioner had initiated action for issue of purchase certificate. Instead, it was a suo motu proceedings. Whether that certificate could have been issued on the factual situation is a different matter. There is nothing on record to show that petitioner was aware that Ext.P2 is a forged document. Going by the evidence of PW5 and Exts.P5 and P8 it is seen that the request for effecting mutation was in the year 1984 while Exct.P10 would show that the purchase certificate (Ext.P2) was cancelled as per order dated 6.2.1986. As to the veracity of Exts.P5 and P6, evidence let in is not very appropriate in that PW5 also admitted that writing and signature in Exts.P5 and P8 appeared to be different. Those documents were not sent to Crl.R.P.No.915/2000 7 expert for examination. Learned magistrate invoking Section 73 of the Evidence Act compared Exts.P5 and P8 with the specimen signature and handwriting of PW5. True, comparison of disputed handwriting/signature by the court is permitted under Section 73 of the Evidence Act but, such comparison by itself cannot form the basis for conviction. In the facts and circumstances of this case, I am unable to say that the evidence disclosed that petitioner knew at the relevant time when he allegedly made Ext.P5, application and Ext.P8, statement that Ext.P2 is a forged document. If that be so, his conviction and sentence under Sections 471 and 474 of the Code cannot stand and are liable to be set aside. This revision petition therefore, is allowed. Conviction and sentence on the petitioner are set aside and he is acquitted of the charges under Sections 471 and 474 of the Code as well. Bail bond is cancelled. Crl.M.A.No.4903 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks Crl.R.P.No.915/2000 8 Thomas P.Joseph, J. Crl.R.P.No.915 of 2000 ORDER 28th May, 2009.