1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 479 OF 1999 01. The State of Maharashtra, through Subhash Ganeshlal Kotecha, age 45 years, Appellant/ori. r/of Ausa, Dist. Latur. complainant versus 01. Mahadeo Bhimrao Jangale age 36 years, Head Master, Vivekanand Vidyalaya,Ausa, r/o Korangala at present Bank Colony, Ausa. 02. Anil Dattatraya Choudhary, age 28 years, occupation: Librarian, r/of Ausa, as above. 03. Namdeo Ramrao Pawar, Respondents/ age 55 years, r/of Ausa, orig. accused as above. WITH CRIMINAL REVISION APPLN. NO. 434 OF 1999. 01. Subhash Ganesh Kocheta age 49 years, occup. Petitioner/ r/o Ausa, Tq. Ausa, original District Latur. complainant versus 01. Mahadeo s/o Bhimrao Jangale age 40 years, occup. service working as Head Master, Vivekanand Vidyalaya, Ausa, r/o Korangala, at present Bank Colony, Ausa, Tq.Ausa, District Latur. 2 02. Anil s/o Dattatraya Choudhary, age 32 years, occup.Librarian, r/of Ausa, District Latur. 03. Namdeo s/o Ramrao Pawar, age 59 years, occup.service, r/of Ausa, Dist. Latur. 04. The State of Maharashtra) Respondents. ------ Smt. B.R. Khekale, A.P.P. for the appellant-State in appeal and for Respondent No.4 in Criminal Revision. Shri V.C. Solshe, Advocate for Respondent No. 1 in appeal and criminal revision. Shri A.S.Shelke, Advocate for Respondent Nos. 2 & 3 in appeal and criminal revision. None for petitioner-applicant in criminal revision application. ------ Coram : P.R.Borkar,J. Judgment reserved on : 11.01.2010. Judgment pronounced on : 15.01.2010. ORAL JUDGMENT 01. These are appeal and criminal revision filed by the State and original complainant respectively, being aggrieved by the judgment and order passed by the learned Judicial Magistrate, First Class, Ausa, in Regular Criminal Case No.78 of 1995 on 17.8.1999, whereby original accused Nos.1 to 3 (present Respondent Nos. 1 to 3 in appeal and criminal revision) were acquitted of the offences punishable under Sections 420, 468 and 464 all read with Section 34 of I.P.C. 3 02. Briefly stated, the facts giving rise to present appeal and criminal revision are that, PW-4 Subhash Kocheta (applicant in criminal revision) examined at Exhibit 64, lodged complaint (Exh.66) with Ausa Police Station, stating that he was the life member of Shiv Chatrapati Shikshan Prasarak Mandal, Ausa, Respondent No.3 Namdeo Pawar (orig.accused No.3) was the Secretary, Respondent No.1 Mahadeo Bhimrao Jangle (original accused No.1) was the Head Master working in the school run by the said Mandal. One Anant Baburao Kolpe was the President of the said Mandal. In the academic year 1993-94, Respondent No.2 Anil Dattatraya Chaudhary (original accused No. 2), though he had not passed the course of librarian training, was appointed as librarian and approval for his appointment was obtained by Respondent Nos. 1 and 3. It is further alleged that PW-3 Ramesh Sopanrao Malwad had passed the librarian training course under roll No.1238 from Latur Centre in the year 1990. Taking advantage of the said certificate and the mark-sheet of PW-3 Ramesh, forged documents were prepared prepared, approval to the appointment of Respondent No. 2 was obtained from Zilla Parishad and he was paid salary. Thus, by forging the documents and by using the same, the Institution, so also Zilla 4 Parish, Latur were cheated and salary of one year was paid to Respondent No.2. Thus, all three accused committed various offences. 03. On the basis of the complaint, offences under Section 464, 468 and 420 all read with Section 34 of I.P.C. were registered and after investigation, charge-sheet was sent to the Court. Prosecution, in all, examined five witnesses. However, the learned Magistrate acquitted all the three accused-respondents of the charges levelled against them. It is this judgment and order of acquittal which is challenged before this court, in the appeal and the revision. 04. It is argued by learned A.P.P. for the appellant-State that the trial court failed to appreciate that forgery can be proved even by the attending circumstances and not necessarily by producing evidence of eye witnesses. The question was not who one of the respondents had actually forged the documents, but, the fact is proved beyond reasonable doubt that there was forgery which was committed by Respondent Nos.1 to 3 and without their participation and active role, there could not have been existence of forged documents and use of the same. Even though 5 factum of cheating with help of forged documents is proved, the trial court ignored the relevant evidence and this is in spite of certain admissions by Respondent No.2 in his statement under Section 313 of Code of Criminal Procedure, 1973. 05. On the other hand, it is argued on behalf of the Respondents-accused that the Investigating Officer is not examined. It is not proved who had actually committed forgery. A person could have been appointed without holding the certificate of library training and in the circumstances acquittal recorded by the learned Magistrate was justified. 06. In his statement under Section 313 of Cr.P.C., accused No.2 Anil Choudhary and other accused admitted certain facts while answering question Nos.3,7,9 and 10. The said facts are sufficiently borne out in the prosecution evidence regarding which there is no dispute any more as the same are not challenged in the cross examination. Thus, it is admitted position that accused No.3 Namdeo Pawar was working as Secretary of the said Shiv Chatrapati Shikshan Prasarak Mandal, whereas accused No. 1 Mahadeo Jangale was working as Head Master. The 6 school was run by Vivekanand Vidyalaya, Ausa. In the year 1993, PW-3 Ramesh Malwad was appointed as a Assistant Teacher and Respondent No. 2 was appointed as librarian. It is further admitted that Respondent No.2 Anil has worked as a librarian in the academic year 1993-94 and he left the services in the middle of academic year 1994-95. It is also admitted by all three respondents-accused that Respondent No.2 Anil Choudhary passed librarian training certificate course in the year 1994 under seat No.197. 07. PW-1 Somshekhar Dhulappa Kurle was serving as a clerk in the Vivekanand Vidyalaya, Ausa. He stated that accused No. 3 Namdeo Pawar was working as Secretary of the Institution and accused No.1 Mahadeo Jangale was the Head Master at the relevant time. In the year 1993, PW-3 Ramesh Malwad was appointed as Assistant Teacher and Respondent No. 2 Anil Chaudhary was appointed as librarian. Appointment of Anil Chaudhary was temporary. Both were appointed by Respondent No.3 Namdeo Pawar. Senior Clerk More prepared proposal for approval to the appointments of PW-3 Ramesh Malwad and Respondent No.2 Anil Choudhary on the say of Respondent No.1 Head Master Mahadeo Jangale. Thereafter, PW-1 Somshekhar Kurle read in 7 newspaper "Dainik Prativavhar" that the certificate of librarian Anil Choudhary was false. He, therefore, enquired with Mr. More, clerk about the same. He also stated that he had read in the newspaper that there was same seat No.1238 of Respondent No.2 Anil Choudhary as well as of PW-3 Ramesh Malwad. On enquiry by PW-1 Someshwar with PW-3 Ramesh, he was told that seat number of Ramesh was 1238 for examination of librarian for which he had appeared in the year 1990. PW-1 Somshekhar Kurle has said that Respondent No.2 Anil worked as librarian for academic year 1993-94 and left the service in the middle of academic year 1994-95. He also stated that Anil passed examination of librarian in the year 1994 under seat No.197. 08. It is brought on record in the cross examination of PW-1 Someshwar Kurle that Respondent No.2 Anil Choudhary is the nephew of Respondent No.3 Namdeo Pawar, the Secretary of the Institution. In his cross examination, PW-1 Someshwar admitted that proposal for approval to the appointment of Respondent No.2 Anil was prepared by Senior Clerk Shri More and Respondent No. 3 Namdeo Pawar was looking after the work of verification of documents of the candidates or their appointments. Witness further stated that he 8 has no personal knowledge whether the said certificate was true or false. It may be noted that PW-1 Someshwar was not expected to verify or certify whether the certificate produced by Respondent No.2 Anil was false or true. It is further brought in his cross examination that when appointment of any person is made, then he was to submit all original documents to the Head Master and after deposit of those documents by the candidate appointed, such candidate has no more concern with the said documents. He further stated that only Respondent No. 1 Mahadeo and Respondent No.3 Namdeo knew what documents were produced by Respondent No.2. So, these are the admissions brought in the cross-examination.It is also brought on record in further cross examination of witness that there were two groups and complainant Subhash Kocheta was of rival panel competing for taking over management from the hands of panel of respondent No.3 Namdeo.However,one thing is very clear that enmity or rivalry between the two groups i.e. the groups of Subhash Kocheta and Respondent No.3 Namdeo Pawar has nothing to do with merits of the case. It is only the rival party which will bring mal-practices in the management to the light and not the party in power or in the management. 9 09. PW-2 Vishvanath Nivarti Mehtre examined at Exhibit 58 is important witness. He was working as Senior Clerk in Medium Education Wing of Zilla Parishad, Latur in the year 1993-94. He stated that it was his duty to verify proposals received from the schools and put them before his superiors. Proposal for part time appointment of Respondent No.2 Anil Choudhary as librarian was received on 14.9.1993 from Vivekanand Vidyalaya, Ausa. Along with proposal, order of the Institution, certificate of passing of S.S.C.examination, certificate of passing librarian's examination and mark-sheet were enclosed. The certificate of librarian bore role No.1238. The documents viz. mark-sheet and the certificate which were sent along with the said proposal to the Zilla Parishad were certified to be true copies and bore the signatures of Respondent No.1 Mahadeo Jangale. This witness in further cross examination stated that they did not demand for originals of the documents as the Head Master, who was Class II Officer, had certified the copies of the documents, to be true copies. He further stated that his superior had given sanction to the proposal and thereafter he issued the letter dated 19.10.1993 (Exh.59) to the Head Master of Vivekananda Vidyalaya, Ausa which was signed by his superior viz. 10 Education Officer Shri R.B.Patil. Thus approval letter Exh.59 is duly proved by this witness. If we peruse Exh.59,it is clear that by that letter approval was given to the appointment of Respondent No.2 Anil Choudhary as part time librarian and his qualification was mentioned as S.S.C. L.T.C.(L.T.C. means Library Training Course). The scale of Rs.1200-2040 was shown to be applicable. Approval was given from 12.7.1993 for the academic year 1993-94. It is thus clear that for obtaining approval,the Zilla Parishad was represented that Respondent No.2 Anil was holding necessary qualification as having completed librarian training course. This important aspect was totally missed by the learned trial judge. 10. PW-2 Vishvanath Mehtre in his examination in chief stated that on 7.12.1994 (i.e.after sanction to the proposal of appointment of Respondent No.2 Anil Choudhary), an application was received by the office from one P.M. Pawar making a grievance that Respondent No.2 Anil for getting appointment had submitted false certificate and,therefore, a letter was issued to the Head Master of Vivekanand Vidyalaya to submit original documents of Respondent No.2 Anil Choudhary to the Zilla Parishad, Latur, but those were not submitted by 11 the Head Master. 11. In cross examination of PW-2 Vishwanath Mehtre, it is brought on record that along with the proposal, appointment order signed by the Secretary and President and application of Respondent No.2 Anil Choudhary were attached. The duty or work of PW-2 Vishwanath Mehtre was to put proper note to his superior. It is true that original remarks submitted by him are not brought on record. However, that by itself will not make any difference on merits of the case,as Exhibit 59-the letter of appointment of Respondent No.2, discloses what was represented to the Zilla Parishad. It is also clear that the entire file of the Zilla Parishad was submitted to the court for perusal. It is on record with letter dated 2.1.1999 (Exh.56). It includes xerox copy of appointment letter of Respondent No.2, his application for appointment dated 12.7.1993 (Exh.67), xerox copies of certificate and mark-sheet showing him to have passed librarian's course in second class from Latur Centre under seat No.1238 in the year 1990.The xerox copy of the Library Training Certificate is article A and the xerox copy of mark-sheet showing Respondent No.2 Anil Choudhary to have passed the librarian's course from Latur 12 Centre under seat No.1238 in second class is marked Article B. So articles A and B were produced before the Zilla Parishad as part of documents enclosed with the proposal for sanction/approval to the appointment of Respondent No.2. This important fact was missed by the trial court. 12. The trial court did not consider consequence of the same. The court wrongly emphasized the fact that the originals of the document were not produced. However, it may be noted that when it is admitted by Respondent No. 2 Anil in answer to question No.10 of his statement under Section 313 of Cr.P.C. that he had passed Librarian Training Course in the year 1994 and his seat No. was 197, there was no question of Respondent No.2 Anil Choudhary having passed the said course in the year 1990 under seat No.1238 from Latur Centre and therefore there being existence of original certificate or mark-sheet of Respondent No.2 Anil Choudhary of the year 1990 under seat No.1238. It was, therefore, wrong to expect for originals of the forged documents. What was forged was xerox copies of the certificate and mark-sheet of PW-3 Ramesh Malwad. The case of the prosecution on this aspect was not considered by the trial court properly. It is the case 13 of prosecution that the certificate and mark-sheet of PW-3 Ramesh produced by him at the time of his appointment were misused and forged, by placing blank paper slips on his name in his certificate and mark- sheet. Name of Respondent No.2 Anil was then written on the said xerox copies of the said certificate and mark-sheet. Then said documents were taken and those were produced before the authorities of Zilla Parishad as being the documents of Respondent No.2 Anil. 13. In paragraph 7 of cross examination of PW- Vishwanath Mehtre, it is brought on record that there was no file other than the file submitted in the court which is referred to above. It is also suggested in the cross examination that Respondent No.2 Anil Choudhary had no concerned with sending any proposal and he had never visited the office of the Zilla Parishad. However, that will not make any difference on decision of the case. It is also stated that in the appointment letter of Respondent No.2 Anil Choudhary, his qualification was mentioned only as S.S.C. But that will also not take away the fact that the certificate of having completed librarian's course and the mark sheet were enclosed to the proposal at Exhibit 56-A produced on record with letter dated 14 2.1.1999 Exhibit 56. PW-2 Vishwanath Mehtre stated that he had no idea regarding original certificate and mark-sheet of Respondent No.2 Anil Choudhary. Another list of employees was shown and therein name of Respondent No.2 Anil Choudhary appears and he is shown to have passed only S.S.C., but that will not make any difference so far as misrepresentation made by Respondents No. 1 to 3 to the authorities of Zilla Parishad while obtaining approval is concerned. 14. PW-3 Ramesh Malwad is the candidate, whose certificate and mark-sheet were used for forgery by taking out xerox copies of the same by putting a slip of blank paper over the name of this witness. Ramesh Malwad deposed that he had applied for appointment to the post of Assistant Teacher and submitted among other documents, the copies of certificate of librarian's course and mark-sheet. He had produced those documents with Secretary of the Institution, namely, Respondent No.3 Namdeo Pawar. His interview was taken by the President, Secretary and other directors of the institution. The Secretary- Respondent No.3 had issued him appointment letter and he was working since 12.6.1993 as Assistant Teacher in Vivekanand Vidyalaya, Ausa. The witness has further 15 stated that Respondent No.2 Anil Choudhary was working as part time librarian in the said school in the academic year 1993-94. PW-3 Ramesh further deposed that he read news item in daily "Prativahar" dated 9.12.1994 wherein it was mentioned that the President and Secretary of the said institution had given appointment to the relative of the Secretary, by using bogus, forged documents. On reading the said news, PW-3 Ramesh enquired with Respondent No. 3 Namdeo about the same and learnt that Respondent No.3 Namdeo had used his certificate of librarian's course and by putting a slip of paper having name of Respondent No.2 Anil Choudhary over the name of PW-3 Ramesh in the said certificate had taken out xerox copies of the said certificate and thus prepared a forged document and on that basis gave appointment to Respondent No.2 as librarian. Although PW-3 Ramesh Malwad demanded his original papers, till his evidence, the same were not given back to him and he was given evasive replies. Thereafter, PW-3 Ramesh referred to Articles "A" and "B" which are the forged documents namely xerox copies of his certificate and mark-sheet as stated earlier. He stated that he passed librarian's course in the year 1990 under seat No.1238 and he also proved that both, Articles "A" and "B" were certified 16 as true copies by Respondent Mahadeo Jangale-Accused No.1 Thus, it is proved that both the articles, viz. Articles A and B were certified by Respondent No. 1 to be true copies under his signature and stamp. Now, admittedly, Respondent No.2 had not appeared for examination of librarian in the year 1990 and his seat number was not 1238. In support of his evidence, PW-3 Ramesh Malwad produced second/duplicate certificate and mark sheet obtained by him from the concerned authorities which are at Exhibits 60/A and 60/B and mark-sheet with list Exhibit 60. This second certificate and mark-sheet issued as original clearly proves that PW-3 Ramesh Malwad passed the course of librarian from Latur Centre in the year 1990 under seat No.1238 in Second Class. Absolutely, there is no reason to disbelieve evidence of PW-3 Ramesh Malwad. 15. In cross examination, PW-3 Ramesh stated that Articles "A" and "B" also bear endorsement by school clerk. So, it is argued on behalf of Respondents-accused that accused No.1 relied upon the endorsement made by senior clerk Shri More and signed on Articles A and B as true copies. In other words, indirectly it is admitted that respondent No.1 has helped in using forged certificate and mark-sheet of 17 Respondent No.2 Anil of which originals were not at all in existence. He signed the xerox copies as true copies of the originals. This is nothing but aiding the forgery. Evidence of PW-3 Ramesh shows that originals were in the custody of Respondent-accused No.3 Namdeo Pawar who misused or allowed misuse of the same. It is also established that Respondent No.2 Anil Chaudhary is nephew of Respondent No.3 and unless Respondent No. 3 allowed misuse of the certificate and mark-sheet of PW-3 Ramesh Malwad, forgery was not possible. It is, therefore, clear that all the three Respondents-accused committed forgery, by misusing the original certificate and mark-sheet produced by PW-3 Ramesh Malwad at the time of his appointment as Assistant Teacher. The learned Magistrate has completely overlooked this aspect of the case. The judgment of the trial court has, therefore, become perverse, since the court has not considered the evidence in its proper perspective. 16. PW-3 Ramesh Malwad in paragraph 8 of his cross examination admitted that after reading the news item published in the newspaper, Respondent No.1 Mahadeo Jangale the Head Master of the school had given notice to Respondent No.2 Anil Choudhary directing him to 18 produce all the documents in the school. It is argued on behalf of the Respondents that it shows innocence of the Head Master-accused No.1. However, the fact remains that Respondent No.1-Head Master had signed the articles "A" and "B" as true copies without verifying the originals thereof and without having those originals in his possession. Respondent No.1 Mahadeo does not come out with a case that senior clerk or any one else misled him. Even admission of Respondent no.2 Anil Choudhary in his statement under Section 313 of Cr.P.C. indicates that he had passed the librarian training course in the year 1994 and not in the year 1990. So, he could not be in possession of mark-sheet or certificate issued for passing the examination held in the year 1990. It is further brought on record in para 8 of cross examination of PW-8 that Respondent No.2 Anil Choudhary had disclosed that he was not having original documents with him as those were with his maternal uncle and therefore he had told the school authorities that he would produce those after getting the same from his maternal uncle. Admittedly, Respondent No.3 is the maternal uncle of Respondent no.1 which fact is not denied in the cross- examination. PW-3 Ramesh also stated that his interview was taken for the post of Assistant Teacher 19 and Librarian. On the day of interview, he had submitted his original librarian's training certificate and mark-sheet to Respondent No.3. 17. At Exhibit 64, there is evidence of Subhash Kocheta who is the original complainant. He stated that accused Nos. 2 and3 forged the documents. He said that forgery is in the hands of both. This witness is not an handwriting expert. He was not present when forgery was committed. But, his evidence shows that he had made enquiry with concerned authorities of the Zilla Parishad, so also with PW-3 Ramesh and had come to a conclusion that by misusing the certificate of library training and the mark-sheet of PW-3, Respondent No. 2 had prepared false documents and secured job. PW-4 Subhash Kocheta also stated that he had demanded original documents of Respondent no.2 from respondent No.1, but Respondent No.1 showed him only approval letter and mark-sheet of S.C.C. and said that other documents were with Respondent No.3. The witness had also approached PW-2 Vishwanath Mehtre, but he also did not show the documents in spite of 2-3 visits. Ultimately, he got access to the xerox copy of the certificate produced by Respondent No.2, through member of Zilla Parishad Shri Somwanshi. It 20 is argued on behalf of Respondents that PW-4 Subhash Kocheta is from rival group, but that will not make his evidence untrustworthy on that count alone. PW-4 Subhash has also stated that he had not seen the originals of which forged documents were prepared. But, the fact remains that the documents which were submitted to the Zilla Parishad were forged documents i.e. Articles "A" and "B" the originals of which never existed. The fact that the original certificate and the mark-sheet of PW-3 Ramesh were not seized by police or returned by Respondent No. 3 to PW-3 Ramesh will not take away the merit of the case. PW-4 Subhash Kocheta admitted that he was no knowing which documents were submitted by Respondent No.2 Anil Choudhary.He had no knowledge as to what was the education qualification of Respondent No.2 Anil on the basis of which he was appointed. Exhibit 59 which is the approval to the appointment of Respondent No. 2 shows that Respondent No. 1 to 3 misrepresented the Zilla Parishad that Respondent No.2 had passed the course of librarian besides possessing qualification of S.S.C. There are some omissions brought on record in cross examination of PW-4 Subhash. The first is that in the complaint it is not mentioned that PW-4 Subhash Kocheta had given an application to the Head 21 Master requesting him to show the documents of Respondent