IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeals No.494 & 495 of 2004 Date of decision : February 22, 2011 Cr.A No.494/2004 Karam Chand son of Machla Ram ….Appellant. Versus State of H.P. …Respondent. Cr.A No.495/2004 Karam Chand son of Digti Ram …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : M/s Rakesh Jaswal, Surinder Sharma, Paresh Sharma and Shivank Singh Panta, Advocates. For the Respondent : Mr. Vikas Rathore, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) By this common judgment two appeals, one filed by Karam Chand son of Digti Ram (for short KCD) and the other filed by Karam Chand son of Machla Ram (for short KCM), are being disposed of, as they arise out of the same judgment, i.e. judgment dated 1st November, 2004, of learned Special Judge, whereby appellant KCD has been convicted of offences, under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year and to pay a Whether reporters of the local papers may be allowed to see the judgment? …2… fine of `500/-, for each of the aforesaid offences, and appellant KCM has also been convicted and sentenced of all the aforesaid offences, in the aforesaid manner and in addition to that has also been convicted of offence, under Section 13(2) of the Prevention of Corruption Act, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `500/-. 2. A complaint, Ex. PW-2/A, was made by one Narottam Singh to the Chief Engineer that appellant KCD, employed as Beldar in IPH Department, had fraudulently got his age recorded less than what it was actually and that if the age of appellant KCD, as got recorded by him in his service record, were taken to be true, then the difference between his age and that of his son Lekh Raj would be only 6-7 years. His complaint was enquired into by Vigilance people and it was found that in the Pariwar Register, prepared in the year 1973-74, age of appellant KCD has been recorded as 35 years, but in his service record he had got his date of birth recorded as 2.5.1949, on the basis of affidavit Ex. PW-3/B sworn by him, before an Executive Magistrate and also a certificate Ex. PW-3/A issued by appellant KCM, who was then working as Panchayat Secretary. Case was formally registered vide FIR Ex.PW- 10/A and investigated. 3. During the course of investigation, the aforesaid affidavit and Pariwar Register Ex. PW-6/A were taken into …3… possession. The Pariwar Register, as per inscription on one of its initial pages, was started in the year 1973-74. Age of appellant KCD is recorded as 35 years in this Register. The entry is at page 166. Also, there is a slip mark ‘A’ pinned at page 166, which is in the nature of a certificate issued by appellant KCM that as per affidavit dated 3.2.1996, sworn by appellant KCD, entry in the Register, with regard to his age, has been revised. However, no change as such appears n the Register. Appellant KCM then issued certificate Ex. PW- 1/A, per which date of birth of appellant KCD has been shown to be 2.5.1949. Certificate records that it has been prepared and issued, on the basis of affidavit sworn by appellant KCD. Now, if the age of appellant KCD was 35 years in 1973-74, his date of birth could not have been 2.5.1949, because with this date of birth his age in 1973-74 should have been 24-25 years. 4. Certificate Ex. PW-1/A, affidavit Ex. PW-3/B and the slip pinned at page 166 of Register Ex. PW-6/A were sent to handwriting expert and fingerprints expert, for comparison of thumb impression of appellant KCD on the affidavit and to the handwriting expert for comparison of the writing and signature of appellant KCM on certificate Ex. PW-1/A and the aforesaid slip pinned in Register Ex. PW-6/A Specimen writings of appellant KCM and specimen thumb impressions of appellant KCD were also sent to the aforesaid experts. The experts reported that questioned writings and signatures …4… were those of appellant KCM and questioned thumb impression on the affidavit as also the application submitted to the Executive Magistrate, for attestation of affidavit, were those of appellant KCD. 5. Both the appellants were challaned, under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act. Learned Special Judge charged appellant KCD with offences, under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code. Appellant KCM was also charged with the aforesaid offences, in addition to offence, under Section 13(2) of the Prevention of Corruption Act. Both the appellants pleaded not guilty. They were put on trial. 6. Prosecution examined 13 witnesses, including the handwriting expert, Secretary of the Panchayat and the Pradhan of the Panchayat. Appellants took the plea of denial simplisiter. Learned trial Court convicted and sentenced the appellants, as aforesaid. 7. I have gone through the record and heard learned counsel for the appellants as also learned Assistant Advocate General, representing the State. 8. It may be pointed out, at the very outset, that the charge framed by the learned Special Judge is not correct. Offence of forgery is not made out. If a person issues a false certificate, under his own signatures, that does not amount to commission of an offence of forgery. “Forgery” …5… is defined in Section 463 of the Indian Penal Code, as follows: “463. Forgery. [Whoever makes any false documents or false electronic record or part of a document or electronic record with, intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.” Definition of “Making a false document” appears in Section 464 of the Indian Penal Code, which is reproduced below: “Section 464. Making a false document A person is said to make a false document or false electronic record- First-Who dishonestly or fraudulently- (a) Makes, signs, seals or executes a document or part of a document; (b) Makes or transmits any electronic record or part of any electronic record; (c) Affixes any digital signature on any electronic record; (d) Makes any mark denoting the execution of a document or the authenticity of the digital signature, With the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed …6… by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alterations.” 9. It is clear from a bare reading of the aforesaid two provisions that if a person writes some false document or a certificate and authenticates the writing or the certificate under his own signature, he does not commit the offence of forgery. 10. The alleged act of appellant KCM does not fall under any other provision of the Indian Penal Code also. It could have been argued that he prepared incorrect certificate and, therefore, his act was covered under Section 167 of the Indian Penal Code, but the factual aspect of the matter indicates that he did not prepare any incorrect record. He …7… very categorically recorded in certificate Ex. PW-1/A that the same had been issued, on the basis of affidavit dated 3.2.1996. That affidavit had been sworn by appellant KCD before Executive Magistrate. The same is Ex. PW-3/B. In this affidavit appellant KCD declared that his date of birth was 2.5.1949. 11. Also, allegations made by the prosecution against appellant KCM do not constitute offence of criminal misconduct, punishable under Section 13 of the Prevention of Corruption Act. Section 13 of the Prevention of Corruption as reads as follows: “13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct, - (a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to he concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any, person whom he knows to be interests in or related to the person so concerned; or …8… (c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or (d) If he, - (i) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or Pecuniary advantage; or (ii) By abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) If he or any person on his behalf, is in possession or has, at any time during the Period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation. -For the purposes of this section "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance, With the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.” 12. The alleged act of preparation of incorrect certificate Ex. PW-1/A does not fall within the mischief of any …9… of the clauses (a) to (e) of sub-section (1) of Section 13 of the Prevention of Corruption Act, 1988. There is absolutely no evidence, suggesting that appellant KCM obtained any valuable thing or pecuniary advantage, for issuing the certificate, in question. Thus, the conviction and sentence of appellant KCM are unfounded. 13. As regards appellant KCD, it is true that in Register Ex. PW-6/A, which purports to have been started in the year 1973-74, his age is recorded as 35 years, but there is no definite evidence that the Register was in fact started in the year 1973-74, nor is there any evidence, indicating that the entry, showing the age of appellant KCD as 35 years, was made in the year 1973-74. Also, there is no evidence that age of appellant KCD was correctly recorded in Register Ex. PW-6/A, even if for argument sake, it be assumed that the entry was made in 1973-74. Entries in Pariwar Register are made, on the basis of entries in the Register of Births and Deaths. Thus, Register of Births and Deaths is the primary evidence. That Register has not been produced nor has any explanation been put forward for withholding the same. Therefore, appellant KCD can also not be said to have committed any offence. Otherwise also, as noticed earlier, he has not committed the offence of forgery. His act, if the allegations of the prosecution were true, could have amounted to the offence of giving false evidence, punishable under Section 193 (second part), read with Section 199 of …10… the Indian Penal Code, on account of his having sworn the affidavit Ex. PW-3/B. As a result of the above discussion both the appeals are accepted, judgment of the trial Court, convicting and sentencing the appellants, is set aside and both the appellants are acquitted. February 22, 2011(sd) ( Surjit Singh ), J