IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 CRL.A.No. 273 of 2002(A) ----------------------------------------- CC.17/2001 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT/ACCUSED: T.P.KUMARAN, THOTUPUZHA HOUSE, DEVASSY KUTY ROAD, ARIMBUR (FORMER SENIOR GRADE ACCOUNTANT DISTRICT TREASURY, THRISSUR). BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2011 ALONG WITH CRA NO.274 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------- Crl.A.Nos.273 & 274 of 2002 --------------------------- COMMON JUDGMENT Appellant was convicted and sentenced for the offences under Sections 465 and 471 of Indian Penal Code and acquitted of the offences under Sections 7, 13(1)(a) and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and Section 468 of Indian Penal Code by Special Judge (Vigilance), Thrissur in C.C.Nos.18/2000 and 17/2001 vide common judgment dated 5.4.2002. Appellant was jointly tried in both the cases. 2. Crl.A.No.273/2002 is filed challenging the conviction and sentence in C.C.No.17/2001 and Crl.A.No.274/2002, challenging the conviction and sentence in C.C.No.18/2000. 3. Appellant was Senior Grade Accountant at District Treasury, Thrissur. Prosecution case in C.C.No.18/2000 is that on 28.10.1991, appellant demanded and accepted Rs.350/- as illegal gratification from one K.K.Jose, who was not CRA 273 & 274/02 2 examined, for issuing a false salary certificate, which was not produced and also demanded Rs.500/- from one Mary Francis, who availed a loan from Fatima Nagar Co-operative Bank through one Francis, who was not examined and for that purpose, submitted Exhibit P2(b) salary certificate, which was forged and used it as genuine and thereby committed offences under Sections 7, 13(1)(a) and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and Sections 468 and 471 of Indian Penal Code. 4. In C.C.No.17/2001, prosecution case is that appellant demanded and accepted Rs.250/- as illegal gratification from PW4 through a middle man, who was neither identified nor examined, for issuing a false salary certificate for the purpose of submitting before Kshemavilasom Kuri Co. Ltd. He forged Exhibit P3(b) salary certificate and used it as genuine and demanded and accepted Rs.250/- from PW12, for issuing a false salary certificate for the purpose of submitting before Dhanalakshmi Bank, Arattupuzha. He forged Exhibit P4 salary certificate and used it as CRA 273 & 274/02 3 genuine and thereby committed offences under Sections 7, 13(1)(a) and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and Sections 468 and 471 of Indian Penal Code. 5. Appellant pleaded not guilty. Prosecution examined 23 witnesses and marked 22 exhibits. On the evidence, learned Special Judge acquitted appellant of the offences under Sections 7, 13(1)(a) and 13(1) (d) read with Section 13(2) of Prevention of Corruption Act and Section 468 of Indian Penal Code. He was found guilty of the offences under Sections 465 and 471 of Indian Penal Code and was convicted and sentenced to simple imprisonment for six months and a fine of Rs.3,000/- and in default, simple imprisonment for one month in each case. These appeals are filed challenging the conviction and sentence for the offences under Sections 465 and 471 of Indian Penal Code. 6. Learned counsel appearing for the appellant and learned Public Prosecutor were heard. CRA 273 & 274/02 4 7. Learned counsel appearing for the appellant pointed out that learned Special Judge, on the evidence, acquitted appellant of the offences under Sections 7, 13(1)(a) and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and also for the offence under Section 468 of Indian Penal Code and conviction of the appellant for the offences under Sections 465 and 471 of Indian Penal Code, on the evidence, is not sustainable. It was pointed out that there is no evidence and no finding that it was the appellant, who forged Exhibits P2(b), P3(b) and P4 salary certificates and the forged salary certificate, which was allegedly given to Jose, was not produced at all and in the absence of any evidence to prove that appellant committed forgery of Exhibits P2(b), P3(b) and P4 salary certificates, the conviction is not sustainable. Learned counsel also argued that evidence establish that it was not the appellant who produced Exhibits P2(b), P3(b) and P4 salary certificates before Fatima Nagar Co-operative Bank, Kshemavilasom Kuri Co. Ltd. and Dhanalakshmi CRA 273 & 274/02 5 Bank respectively and in such circumstances, conviction of the appellant for the offences under Sections 465 and 471 of Indian Penal Code is not sustainable. Learned counsel argued that though learned Special Judge compared the signatures seen in Exhibits P2(b), P3(b) and P4 and entered a finding that signatures seen therein are that of the appellant and also relied on the evidence of PWs 10, 15 and 18, evidence of PW15 does not show he identified the signature and evidence of PW10 is only that the signature is similar to that of the appellant and PW18 has not given any reason to identify the signature and in such circumstances, learned Special Judge was not justified in relying on their evidence as against the provisions of Section 47 of Indian Evidence Act. It is, therefore, argued that the conviction is not sustainable. 8. Learned Public Prosecutor did not dispute the fact that there is no evidence to prove that appellant forged either Exhibit P2(b) or P3(b) or P4 salary certificates. Learned Public Prosecutor fairly CRA 273 & 274/02 6 submitted that evidence is also not that appellant submitted the salary certificates before the respective institutions so as to use them as genuine receipts. 9. Prosecution case is that Exhibits P2(b), P3(b) and P4 salary certificates are forged and they are used as genuine for obtaining money from the respective institutions, namely, Fatima Nagar Co- operative Bank, Kshemavilasom Kuri Co. Ltd. and Dhanalakshmi Bank. Prosecution did not adduce any evidence to show that appellant executed any bond agreeing to stand as surety, either to Mary Francis, who availed a loan from Fatima Nagar Co-operative Bank by producing Exhibit P2(b) or to PW4, who availed a loan from Kshemavilasom Kuri Co. Ltd. by producing Exhibit P3(b) or to PW12, who obtained a loan from Dhanalakshmi Bank by producing Exhibit P4. Learned Special Judge, on the evidence, found that Exhibits P2(b), P3(b) and P4 were not produced by the appellant before the respective institutions. Appellant was convicted solely based on the evidence CRA 273 & 274/02 7 of PWs 10, 15 and 18 to the effect that salary certificates contain the signatures of the appellant. As rightly pointed out by the learned counsel appearing for the appellant, evidence of PW15 does not show that he identified the signatures of the appellant in Exhibits P2(b), P3(b) and P4 salary certificates. Though PW10 deposed that signatures in the salary certificates are similar to that of the signatures of the appellant, he has not asserted that it is the signatures of the appellant. The evidence that signature is similar do not tantamount to identification of the signature. Moreover, PW10 has not specifically deposed that he was familiar with the signature of the appellant and therefore could identify his signatures, though he deposed in cross- examination that he had seen the signature of the appellant in the acquittance register. Hence, evidence of PWs10 and 15 do not prove the identity of the signatures of the appellant. Though PW18 identified the signature seen in the salary certificates, his evidence does not show that he had CRA 273 & 274/02 8 any acquaintance with the signature of the appellant or was capable of identifying the signature. Therefore, based on the evidence of PWs 10, 15 and 18, it cannot be said that Exhibits P2(b), P3(b) and P4 salary certificates contain the signatures of the appellant. Though the court is competent to compare the signatures under Section 73 of Indian Evidence Act, it is not proper for the learned Special Judge to compare the signatures, without the aid of an expert and convict the accused solely based on the identification. In such circumstances, learned Special Judge was not justified in convicting the appellant based on the identification of the signatures in the salary certificates. Moreover, when there is no evidence, whatsoever, to prove that it was the appellant who forged the disputed salary certificates and when the evidence establish that those salary certificates were produced by the respective persons who had bid the chitty or availed the loan and not the appellant, in the absence of any evidence to prove that appellant used those CRA 273 & 274/02 9 certificates as genuine with the knowledge that they are forged documents, conviction of the appellant for the offence under Section 465 or 471 of Indian Penal Code is not sustainable. In such circumstances, the conviction can only be set aside. Appeals are allowed. Conviction of the appellant for the offences under Sections 465 and 471 of Indian Penal Code in C.C.No.18/2000 and C.C. No.17/2001 by Special Judge (Vigilance), Thrissur are set aside. Appellant is found not guilty of the offences under Sections 465 and 471 of Indian Penal Code in both the cases. He is acquitted in both the cases. Bail bonds executed by the appellant stand cancelled. 6th January, 2011 (M.Sasidharan Nambiar, Judge) tkv CRA 273 & 274/02 10 M.Sasidharan Nambiar, J. --------------------------- Crl.A.Nos.273 & 274 of 2002 --------------------------- JUDGMENT 6th January, 2011