IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 CRL.REV.PET.NO. 2710 OF 2004() ----------------------------------------------- CC.8/2000 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, ANDROTH CRAP.475/2004 OF SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------------- BUSHRA BEEGUM, D/O. U.C.K.THANGAL, U.T. OF LAKSHADWEEP, KAVARATTI. BY ADV. SRI.T.RAVIKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE, REP. BY THE S.I. OF POLICE, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI ISLAND (CRIME NO.10/1999 OF KAVARATTI ISLAND POLICE STATION). ADV. A.M.SHAFFIQUE(SC.LAKSHADEEP ADMINSTRATIO PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. SRI.P.R.RAMACHANDRA MENON,SC,LAKSHADWEE SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON 30/01/2009 PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No. 2710 of 2004 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 30th day of January, 2008 O R D E R -------------- The Kavarathi police charge sheeted petitioner in the court of learned Judicial First Class Magistrate, Andhroth in C.C. No.81 of 2000 for offence punishable under Section 471 of the Indian Penal Code (for short, “the IPC”) alleging that petitioner, knowing that the Provisional Certificate is a forged document, used it as genuine and obtained employment. Learned magistrate framed charge against her for offences under Sections 471 and 466 IPC but acquitted her of the charge under Section 466 IPC. She was found guilty under Section 471 IPC, convicted and sentenced to undergo simple imprisonment for one year and payment of fine of Rs.5,000/-. She preferred appeal and got reprieve in the matter of substantive sentence which was modified as simple imprisonment till rising of the court. Petitioner is aggrieved and approached this Court in revision. 2. Learned counsel for petitioner contended that there is no evidence to show that the Provisional Certificate under challenge is a forged one. At any rate it is not proved by the prosecution that petitioner, knowing that certificate to be a forged one used it as CRL. R.P. No.2710 of 2004 -: 2 :- genuine. According to the counsel, complaint reported by the Vigilance Officer itself is shrouded in suspicious circumstances, registration of the case was delayed and at any rate, FIR reached the court concerned after much delay which has not been explained. Learned counsel placed reliance on the decisions in State of Kerala v. Samuel (1960 KLT 666 (F.B.), Arun Joseph v. State of Kerala (1973 Cri. L.J. 185), 1979 Cri. LJ. 1123), Chatt Ram v. State of Haryana (1979 Cri. L.J. 1411), Arjun Marik v. State of Bihar (1994) SCC (Cri.)1551) and Tamilselvan v. State (2008 (6) Supreme 52). Learned Public Prosecutor supported the findings of the courts below. 3. It is not disputed that petitioner was a student of Pusa Polytechnic, New Delhi during 1991-94 in the discipline of Printing Technology. That course consisted of six semester examinations. Petitioner passed semesters 2 to 6 but according to the prosecution, she did not pass first semester as she failed in one subject (Applied Mathematics) and hence she was not eligible and could not have been issued a Provisional Certificate. She however, produced the photocopy of a Provisional Certificate stated to have been issued to her from Pusa Polytechnic and applied for registering her name with the Employment Officer, Kavarathi. Later, when vacancy arose in the CRL. R.P. No.2710 of 2004 -: 3 :- post of Computer - Gr.II in Government Press, Lakshadweep, she was appointed in that post based on her qualification shown in the Provisional Certificate. While so, P.W1, Vigilance Officer got a complaint stated to have been sent by an Organisation (which was later found to be non-existent) in the year 1997 alleging that petitioner had not passed the Printing Technology course and that Provisional Certificate she had produced is a forged document. P.W.1 made some enquiry on his own, verified the matter with the Principal of Pusa Polytechnic and learnt that complaint is true. He sent a letter to the Sub Inspector, Kavarathi along with a copy of the complaint he had received. Kavarathi police registered case on 27.11.1999 for offences under Sections 471 and 466 IPC. Exhibit P41 is the FIR. Exhibit P1 is the report of Vigilance Officer, dated 27.11.1999. P.Ws.11 to 13 conducted investigation. P.W.13 filed final report for offence under Section 471 IPC. It was stated in the final report that investigation did not reveal who had forged the Provisional Certificate in question and that on receipt of materials indicating as to who committed forgery, further report will be submitted. It is conceded that no such further report was submitted by the investigating agency. It is in the circumstances that learned magistrate framed charge under Sections 471 and 466 IPC. As rightly held by learned magistrate there is no evidence as to who committed forgery. CRL. R.P. No.2710 of 2004 -: 4 :- Therefore that aspect is not required to be gone into. What is germane for consideration is whether document in question is a forged one and knowing the same to be so, petitioner obtained employment and thus used the same as genuine. 4. P.W.2 is the Junior Employment Officer, Kavarathi. He proved Exhibits P5 and P6, application submitted by petitioner with copy of Provisional Certificate. Application submitted by the petitioner was to enrol her in the register maintained in that office. Exhibit P6 is the copy of Provisional Certificate (Original is Exhibit P11) produced by her along with Exhibit P5. P.W.2 stated that it is on the request contained in Exhibit P5 that petitioner was enrolled in the register maintained in his office. In Exhibit P5, petitioner stated that she passed Printing Technology course from Pusa Polytechnic in the year 1994. P.W.3 is the Manager of Government Press, Lakshadweep. He stated that when a vacancy arose in the post of Computer - Gr.II, request was made to the Employment Exchange to fill up that vacancy. P.W.2 gave Exhibit P8 reply recommending name of the petitioner. Interview was held on 23.1.1995. Before the Interview Board, petitioner produced various certificates including Provisional Certificate in Printing Technology and she was selected. She was given appointment order on 27.1.1995 and on the same day, she joined service. She went on leave on 12.12.1999. On 17.12.1999 CRL. R.P. No.2710 of 2004 -: 5 :- notice was issued to the petitioner to produce her Diploma Certificate. She sought time and that was granted. But she did not produce the Certificate. While so on 12.1.2000 she requested that she may be relieved from the post. Accordingly, petitioner was relieved on 13.1.2000. Thus there is evidence to show that petitioner made use of a copy of Exhibit P11 (that copy is Exhibit P6), applied to the Employment Exchange to register her name and using Exhibit P11 itself, secured employment in the post of Computer - Gr.II, in Government Press, Lakshadweep. Then the question is whether Exhibit P11 is a forged document and whether petitioner knew the same to be so. 5. So far as the allegation of forgery is concerned, though Investigating agency stated in the final report that investigation conducted so far did not disclose as to who had forged the document in question and there is no evidence in that line, it is open to the prosecution to prove that Exhibit P11 is a forged document for the purpose of proving the charge under Section 471 IPC. Exhibit P11 along with certain other documents are stated to have been seized by P.W.5, Assistant Sub Inspector of Police, in the course of investigation on 3.12.1999. Along with Exhibit P11, mark list of Semester 2 to 6 examinations (marked as Exhibits P13 to P16) were also seized by P.W.5 as per Exhibit P10. Though it is contended by learned counsel CRL. R.P. No.2710 of 2004 -: 6 :- for petitioner that what is seized as per Exhibit P10 is not Exhibit P11 but a Provisional Certificate bearing 'No.33838' as revealed from evidence of P.W.5, that contention cannot be accepted since Exhibit P10 actually referred to the Provisional Certificate bearing serial No.008383 and by an inadvertent mistake or even carelessness, P.W.5 stated in his evidence the serial number of the Certificate seized as 333838. Thus, there is evidence to show that Exhibit P11 was in the possession of the petitioner. 6. Exhibit P11 is purported to have been signed by P.Ws.4, 6 and C.W.7. P.W.4, Principal of Pusa Polytechnic and P.W.6 who was the Head of Department in Printing Technology in Pusa Polytechnic claimed that they have not signed Exhibit P11. The signatures appearing in Exhibit P11 are not theirs. They stated that they can identify the signature of C.W.7 and that signature appearing in Exhibit P11 is not that of C.W.7. In the course of investigation, Investigating officer had taken the specimen signatures of P.Ws.4, 6 and C.W.7 (Exhibits P34 series to Exhibit P36 series) and the same as well as Exhibit P11 were sent to the Expert for opinion. Exhibit C1 is the report of the Expert. Learned magistrate did not rely on Exhibit C1 since the Expert who issued Exhibit C1 is not an Expert coming under Section 293 of the Code of Criminal Procedure (for short, “the Code”). Therefore, Exhibit C1 cannot be looked into for any purpose. P.W.7, CRL. R.P. No.2710 of 2004 -: 7 :- former staff of Pusa Polytechnic has also stated that the signatures in Exhibit P11 are not of P.Ws.4, 6 or C .W.7. 7. P.W.8 who is a former staff of Pusa Polytechnic and Registrar of Board of Technical Education, New Delhi proved Exhibit P36 which is the Status Report regarding Roll No.915036 alloted to the petitioner in the semester examinations. As per the evidence of P.W.8 and Exhibit P36, petitioner passed the 2nd to 6th semester examinations but she failed for Applied Mathematics in the first semester examination. Revision petitioner however passed in all other subjects in the first semester examination. According to P.W.8, petitioner is not eligible to get award of the Diploma in Printing Technology as she had not passed the first semester examination. 8. Learned counsel for petitioner contended that P.W.4 is in the habit of signing in different manner and hence no reliance can be placed on his evidence. It is also contended that the stand of investigating agency that no Provisional Certificate beginning with serial No.'00' had been issued to any student is not correct since evidence revealed that Provisional Certificate beginning with serial No.00 had been issued to other students. It is contended that prosecution did not produce mark list of the first semester examination to show that petitioner had not passed in that examination. Further contention is that there is no evidence to show CRL. R.P. No.2710 of 2004 -: 8 :- that petitioner was informed that she had failed in the first semester examination. If she had failed in the first semester examination, she would not have been permitted to attend the examinations for semesters 2 to 6. It is also contended that Exhibits P32 and P33 proved through P.W.4 cannot be accepted since evidence revealed that P.W.4 had attested the said documents as Principal only on the previous day of his examination in the trial court. 9. So far as signature of P.W.4 is concerned, discrepancy pointed out is that even in his signatures in Exhibit P34 series he has used capital letter 'A' after the letter 'N'. It is seen from evidence of P.W.6 that a Provisional Certificate stated to have been signed by her was shown to her and she admitted that the said signature is of her. But that certificate is not seen produced and marked in evidence. At any rate on going through the evidence of P.W.4 and Exhibit P34 series what I find is that after the letter 'N' (in the signature), there is thickening of ink. Therefore it is not possible to say whether the letter after 'N' is small letter 'a' or capital letter 'A'. It is difficult to think that P.W.4, Principal of the Polytechnic is in the habit of signing in different manner. P.W.4 stated that he has not signed the Certificate (Exhibit P11). P.W.6 also stated so. P.Ws.4 and 6 who can identify the signature of C.W.7 have stated that the signature purported to be that of C.W.7 (in Exhibit P11) is not that of C.W.7. Though comparison CRL. R.P. No.2710 of 2004 -: 9 :- itself cannot form basis for conviction there is evidence of P.Ws.4 and 6 that neither they, nor C.W.7 have signed Exhibit P11. It is also brought out from Exhibit P31, specimen form of Provisional Certificate and Exhibit P33 that Provisional Certificates did not begin with serial No.00 but had six digits beginning with '94'. Thus it is proved beyond reasonable doubt that Exhibit P11 is the result of forgery. 10. Then the question is whether petitioner knew that Exhibit P11 is a forged document. It is true that while according to P.W.4 result of examinations will be intimated to the students through the department concerned, P.W.8 sated that results will be communicated to the Principal who in turn has to communicate the same to the students. P.W.4 has no case that he had intimated the result of the first semester examination to the petitioner. Assuming that there is contradiction in the evidence of P.Ws.4 and 8 as to who has to communicate the result of examinations to the students, there is the evidence of P.W.6 that she had told the petitioner that the latter failed for Applied Mathematics in the first semester. Assuming that there is no supporting evidence for that version of P.W.6, one has to bear in mind that P.W.5 had seized Exhibits P13 to P16, mark list of the 2nd to 5th semester examinations from the house of the petitioner. Assuming that petitioner has a case that she had passed in the first semester also, she would have summoned the mark lists for first CRL. R.P. No.2710 of 2004 -: 10 :- semester examination. Petitioner did not explain how she came into possession of Exhibit P11. Going by the version of P.W.2, Provisional Certificates are being received by the students personally or by their nominees with permission of the Principal. He proved Exhibit P33, extract of issue register for issuance of Provisional Certificates to the students. Petitioner does not figure in Exhibit P33. Thus it is not shown by the petitioner how she came into possession of Exhibit P11. It is also to be borne in mind that petitioner had not got with her mark list for the first semester as is clear from the fact that mark lists for 2nd to 5th semester examinations alone could be seized by P.W.5. These circumstances persuade me to think that petitioner knew that she had failed for Applied Mathematics in the first semester. 11. It is contended by learned counsel that though Exhibit P41, FIR is dated 29.11.1999 it was received by the Judicial First Class Magistrate, Androth only in January, 2000. This contention cannot be accepted since from Exhibit P41 it is seen that the FIR reached learned magistrate on 28.12.1999 at 10.35 a.m. True, FIR is dated 27.11.1999 and going by the covering letter attached to Exhibit P41, FIR was sent to the learned magistrate on 29.11.1999. Prosecution did not explain how the FIR reached learned magistrate only on 28.12.1999. But as seen from the records that the court of Judicial First Class Magistrate is situated in the island of Androth while the CRL. R.P. No.2710 of 2004 -: 11 :- police station is situated in the island of Kavarathi. It may take some time for the FIR to reach the court in another island. Moreover, mere delay in the FIR reaching the court cannot by itself be a ground to reject the case of prosecution. It is to be seen how the delay has prejudiced the petitioner and whether there was any tampering in the meantime. There is nothing on record to show that such things have happened in the case. Mere delay in reaching the FIR in the court concerned in the circumstances is not fatal. 12. Another argument advanced by the counsel for petitioner is that though P.W.1, Vigilance Officer had received complaint from a non-existent Organisation in the year 1997, he sent a report to the police only in November, 1999. Evidence of P.W.1 shows that he had been enquiring into the truth of the complaint through letters addressed to P.Ws.4 and 6. That, the Organisation which had sent the complaint to P.W.1 is non-existent or that P.W.1 himself reported the matter to the police only in the year 1999 cannot be a reason to find against the case of prosecution. There is evidence to show that petitioner was aware that she has not passed first semester examination in Applied Mathematics, but used Exhibit P11 which is a forged document and obtained job in Government Press, Lakshadweep. Evidence satisfied the requirements to constitute the offence under Section 471 IPC. In the facts, evidence and CRL. R.P. No.2710 of 2004 -: 12 :- circumstances of the case, decisions relied on by learned counsel have no application. I have gone through the judgments of the courts below and find no reason to interfere with the concurrent findings of fact. Resultantly, revision petition fails. It is dismissed. Bail bond shall stand cancelled. Criminal Miscellaneous Application No.12514 of 2004 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv