Narayanan s/o Nanu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934** **Crl.Rev.Pet.No. 756 of 2004 ( )** **------------------------------CRA.392/2003 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM CC.209/2002 of J.M.F.C.,KOLENCHERRY** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **NARAYANAN S/O. NANU, AGED 51 YEARS, DEPALAYAM VEETTIL @ PUTHRA, ARUVELIKKARA KUNNATHUNADU PANCHAYATH, NO. 6/145.** **BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN SRI.PRAVEEN K. JOY SRI.A.RASHID** ## **RESONDENT/RESPONDENT/COMPLAINANT AND STATE:** **---------------------------------------------** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MUVATTUPUZHA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY ADV. SMT. LISH M.G. - PUBLIC PROSECUTOR.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd **S. SIRI JAGAN, J.** ------------------------------------------Crl.R.P. No.756 of 2004 ---------------------------------------------Dated this the 16[th] day of November, 2012 ## **ORDER** The accused in C.C.No.209/2002 before the Judicial First Class Magistrate's Court, Kolenchery, is the petitioner herein. He was prosecuted for offences punishable under Sections 465, 468, 471 and 420 of the Indian Penal Code. The prosecution case was as follows: The petitioner with the intention of using the same as original, fabricated a salary certificate containing incorrect salary details of the petitioner, forging the signature of PW1, therein, used the office seal and designation seal of PW1 creating a forged salary certificate of the accused, who was a peon attached to the Judicial First Class Magistrate's Court-I, Muvattupuzha and used the forged salary certificate offering himself as a surety for a loan amount to help PW6 to get a loan from Federal Bank, Palluruthy, of which PW4 is the Manager. Thereafter, the accused borrowed Rs.7,000/- (Rupees seven thousand only) from PW6, but failed to return it cheating PW1 and the Federal Bank. Thereby, the 2 Crl. R.P.No.756/04 accused is alleged to have committed the offences charged against him. 2. The prosecution examined PWs 1 to 7 and marked Exts.P1 to P6. The defence did not adduce any evidence. After considering the evidence adduced by the prosecution, the Magistrate convicted the petitioner under Sections 468 and 420 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years for the offence under Section 468 of the Indian Penal Code and rigorous imprisonment for two years under Sections 420 of the Indian Penal Code. The sentences were to run separately. The petitioner filed Criminal Appeal No.392/2003 before the Additional Sessions Judge (Adhoc-I), Ernakulam, who dismissed the same confirming both the conviction and the sentence. The petitioner is challenging the judgments of the courts below. 3. The petitioner's contentions are as follows:- There is no evidence on record to prove that the petitioner forged Ext.P3 salary certificate. There is not even any reliable evidence to prove that Ext.P3 document was produced before Crl. R.P.No.756/04 3 the Bank by the petitioner. It is submitted that, apart from the interested evidence of PW4, the manager of the Bank, there is no evidence whatsoever to connect the petitioner with the crime. PW4 is an interested witness, insofar as he has given loan to PW6 without following the procedure prescribed by the bank for the same. Therefore, if that is proved, PW4 is liable to be proceeded against and therefore, it is in the interest of PW4 to see that somebody else is held responsible for Ext.P3 document. It is pointed out that PW4, the bank Manager, himself admitted that Ext.P3 document does not conform to the requirements of a salary certificate, despite which he accepted the same for the purpose of granting the loan. It is further submitted that Ext.P3 does not even contain the signature of the petitioner and therefore, it is evident that PW4 himself is the person responsible for Ext.P3. Otherwise, on receipt of Ext.P3, he would have certainly required the petitioner to put his signature in the same, which he has not done. Therefore, according to the learned counsel for the petitioner, everything points to PW4 as the person responsible for Ext.P3 document. It is further submitted that, the 4 Crl. R.P.No.756/04 investigation, in this case, is totally faulty. The investigating officer had not done what he ought to have done. He has not sent Ext.P4 agreement, in which, PW4 claims that the petitioner has signed, to the expert, for opinion as to whether the signature contained therein is that of the petitioner. The learned counsel points out that even the prosecution witness, who knows the petitioner very well, namely, PW2, has given specific and categoric evidence to the effect that the petitioner does not know how to read and write English. Ext.P.P3 document is in English and as such, there cannot be any doubt that the petitioner has no connection with Ext.P3 salary certificate. 4. On the other hand, the learned Public Prosecutor would contend that there is sufficient evidence to prove that the petitioner is the person responsible for production of Ext.P3 before the bank. PW4, the Manager of the bank has given specific evidence to the effect that the petitioner stood as surety for a loan to PW6 in respect of which, the petitioner had produced Ext.P3 before PW4 and the petitioner signed Ext.P4 loan agreement along with the borrower, her husband and the Crl. R.P.No.756/04 5 other surety in front of PW4. That evidence has not been demolished in cross examination by the petitioner. Further, PW6, the principal debtor has admitted that the petitioner was one of the sureties for loan granted to her. These evidence is more than sufficient to connect the petitioner with Ext.P3 forged salary certificate and his production of the same before the bank has also been conclusively proved. According to the learned Public Prosecutor, there is no law that always a document should be sent for expert opinion whenever the accused disputes handwriting or signature. In this case, PW4 has given specific evidence that the petitioner has appeared before him at the bank, produced Ext.P3 and signed Ext.P4 loan agreement as a surety. When that evidence is sufficient to prove the guilt of the petitioner, the fact that the document has not been sent for expert opinion, does not in any way affect the prosecution case adversely. In any event, when the petitioner has forged the salary certificate and did not sign the same, he cannot be expected put his correct signature in Ext.P4 also is the contention raised. 5. I have considered the rival contentions in detail. 6 Crl. R.P.No.756/04 6. It is not disputed before me that Ext.P3 is a forged document. Ext.P3 salary certificate was supposed to be issued by PW1, the Magistrate in office, from where the same was supposed to be issued, at the relevant time. he has given evidence that he had not issued Ext.P3 salary certificate . It is also stated that the particulars stated in the salary certificate are not real facts relating to the salary of the petitioner. 7. As such, it is proved beyond any doubt that Ext.P3 is a forged salary certificate. Then, the question is, who is responsible for the same? PW2, the Junior Superintendent of Judicial First Class Magistrate's Court-II, Muvattupuzha has stated in cross-examination that he knows the petitioner for years and that the petitioner does not know how to read and write English . It is also not in dispute that Ext.P3 salary certificate is in English. Ext.P3 salary certificate does not contain the signature of the petitioner, which, usually a salary certificate should contain. As such, I am also of opinion that it could not have been held that the petitioner forged the salary certificate. 8. But, that does not mean that the petitioner is not Crl. R.P.No.756/04 7 guilty of any offence. PW4 has given categoric evidence that the petitioner was a surety for the loan sanctioned to PW6. He stated on oath that the petitioner appeared before him, produced Ext.P3 salary certificate and signed Ext.P4 loan agreement before him. Although he has been elaborately cross examined, the petitioner could not demolish his evidence to any extent. Of course, there are some loose ends in his evidence, such as why he did not insist on the petitioner signing at the blank space for his signature and questioned the petitioner about the other discrepancies therein. But, in view of the evidence to the effect that the petitioner signed A4 agreement before him and produced Ext.P3 document before him, such lapses can only be regarded negligence on the part of PW4 in doing his duty. Moreover, PW6, the principal debtor has also given evidence to the effect that the petitioner was one of the sureties for sanctioning loan to her by PW4. Of course, she would in cross examination express ignorance about the signature in Ext.P4. She would also say that the sureties were arranged by somebody else. But, the fact that she gave evidence to the effect that the petitioner was one of Crl. R.P.No.756/04 8 the sureties for sanction of the loan to her remains a proved fact. The same considered together with the evidence of PW4, proves beyond a reasonable doubt that the petitioner produced Ext.P3 salary certificate before PW4 and signed Ext.P4 loan agreement. The fact that the signature in Ext.P4 loan agreement was not sent for expert opinion, does not in any way diminish the evidenciary value of the deposition of PW4 read with that of PW6. Ext.P3 purports to be a salary certificate of the petitioner himself. Then, he must have known that, that is not a genuine salary certificate, when he has produced a forged salary certificate before the PW4. I am satisfied that the offences under Section 471 and 420 are clearly established. Section 471 of IPC reads thus: “ **471.Using as genuine a forged document or electronic record** .- Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.” Therefore even if there is no evidence to show that the petitioner did not forge Ext.P3 so as to convict him under 9 Crl. R.P.No.756/04 Section 468, in view of Section 471, the petitioner is liable to be punished for using the forged document as genuine. Clearly, by producing the forged document the petitioner has cheated the bank. 9. The fact that the investigation could have been better done is no ground to interfere with the judgment of the courts below. The supreme court has very recently in the decision of _**Dayal Singh and others**_ v. _**State of Uttaranchal**_ [2012 (2) KLD 443 (SC)] held that the fault in investigation by the investigating officer cannot be a ground for interfering with the conviction, if there is sufficient evidence on record to prove the guilt of the accused. Here, as I have already held, there is sufficient evidence to prove the guilt of the accused. In the above circumstances, I do not find any merit in any of the contentions of the petitioner. Accordingly, the Crl. R.P. is dismissed. ## **S. SIRI JAGAN, JUDGE** acd