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In Re: S.V. Rama Rao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 183 of 1964
Judge
Reported inAIR1967Mys59; 1967CriLJ559
ActsIndian Penal Code (IPC), 1860 - Sections 408, 467, 468 and 471; Code of Criminal Procedure (CrPC) , 1973 - Sections 342A and 540
AppellantIn Re: S.V. Rama Rao
Appellant AdvocateK.R. Srinivasa Rao, Adv.
Respondent AdvocateN.C. Mahajan, High Court Govt. Pleader
Excerpt:
- labour & services. dismissal from service: [subhash b. adi, j] order passed by appellate authority instead of disciplinary authority validity - held, no doubt, under the standing orders the order of dismissal has to be passed only by project engineer or an officer of equal cadre. object of holding enquiry before the punishment is imposed is that, the employee gets fair chance to defend his case and should not be punished without enquiry. appeal is provided to give further opportunity to the employee to question the order of dismissal if it is erroneous. in this case, as far as the enquiry is concerned no error is pointed out and the respondent/employee had an opportunity to defend his case. the enquiry officer has found that the charge is proved. what ought to have been considered by.....1. the appellant who was the accused in kolar sessions case no. 6 of 1961, has been convicted of the offences under sections 467, 468 and 471, indian penal code and is sentenced to undergo various terms of imprisonment. hence this appeal.2. the order of conviction and sentence which is challenged in this appeal by the appellant is made by the learned second additional sessions judge, bangalore division (camp: kolar), on the re-trial of the accused.3. the conviction of the accused in the previous trial was set aside by this court and a re-trial was ordered since it took the view that the irregularities committed by the prosecution vitiated the trial and conviction of the accused was held to be bad in law.4. it is the case of the prosecution that the accused was a clerk in the.....
Judgment:

1. The Appellant who was the accused in Kolar Sessions Case No. 6 of 1961, has been convicted of the offences under Sections 467, 468 and 471, Indian Penal Code and is sentenced to undergo various terms of imprisonment. Hence this appeal.

2. The Order of conviction and sentence which is challenged in this appeal by the appellant is made by the learned Second Additional Sessions Judge, Bangalore Division (Camp: Kolar), on the re-trial of the accused.

3. The conviction of the accused in the previous trial was set aside by this Court and a re-trial was ordered since it took the view that the irregularities committed by the prosecution vitiated the trial and conviction of the accused was held to be bad in law.

4. It is the case of the prosecution that the accused was a clerk in the Kanyakaparameswari Co-operative Society, Ltd., Kolar; in that Society even the non-members could deposit the money and accordingly P. W. 6 Syed Murthuza a non-member deposited Rs. 800 in the said Society; after some time Syed Murthuza went to withdraw from the Society the interest due on his deposit amount; the accused was not working in the Society then: Syed Murthuza was told by P. W. 1 (Secretary) that he has withdrawn a sum of Rs. 500 but he told P. W. 1 that he has not withdrawn the amount; the Secretary then verified the accounts of the Society and found that there had been in fact a withdrawal of Rs. 500 alleged to have been withdrawn by Murthuza on 10th June 1957; Ex. P-3 was the withdrawal form relating to it.

The Secretary then showed him the voucher book which contained the thumb mark on the voucher; Murthuza denied having affixed his thumb-mark to the voucher; the Secretary of the Society therefore told Murthuza to give a written complaint; he gave the complaint; the Secretary then placed the complaint before the Managing Committee which by its resolution dated 27th November 1957 decided that the matter should be reported to the police; accordingly, P. W. 1 Bhakta Vatsal reported the matter to the police as per Ex. P-2; on this report, P. W. 11 Narasinga Rao the then P. S. I. of Kolar Town registered a case and thereafter necessary investigation was carried out by several Inspectors who took charge of the office one after another.

P. W. 13 Andiappa, the Inspector of Police took the thumb-impressions of the accused on 20th July, 1958 on the paper marked Ex. P-7, in the presence of the panchayatdars, he also took the exemplar writings of the accused as per Exs. P-8 and P-9 and after the investigation was completed, a charge sheet was placed against tho accused in the Court of the Second Magistrate, Kolar, who after necessary enquiry committed him to stand his trial in the Court of Sessions,where he was charged alleging that he being the clerk of the Kanyakaparameswari Co-operative Society, Ltd., Kolar on the 10th June 1957 at Kolar forged the withdrawal form as well as the receipt of acknowledgment by affixing his own left thumb impression as that of Syed Murthuza and thereby committed forgery under Section 467 I. P. C. of valuable security.

He was further charged that he forged the same documents intending that they should be used for cheating and thereby committed aa offence under Section 468 Indian Penal Code. He was also charged that he used those documents which were charged as genuine for withdrawing the money and thereby committed an offence under Section 471 Indian Penal Code. He was also charged for having withdrawn Rs. 500 under the said forged document and thereby committed an offence under Section 408 Indian Penal Code.

5. The accused has pleaded not guilty to the various charges levelled against him.

6. In the previous trial the accused was found guilty of all the four offences. He therefore preferred an appeal to this Court along with three more appeals. This Court set aside the convictions and sentences of the accused and directed a re-trial of the case. The accused has been retried and is found guilty of the offences under Sections 467, 468 and 471 Indian Penal Code. He is acquitted of the charge under Sec. 408 Indian Penal Code.

7. The learned Sessions Judge having found the accused guilty convicted him and sentenced to undergo rigorous imprisonment for the term mentioned in his Order and it is the correctness of this Order of conviction and sentence that is being challenged in this appeal by Mr. Srinivasa Rao, the learned Counsel for the appellant-accused.

8. In support of his appeal, Mr. Srinivasa Rao made three submissions. They are firstly that the trial suffers from the same serious irregularity for which the appellant's conviction in previous trial was set aside. Though this court while directing a re-trial pointed out the serious irregularities committed by the learned Public Prosecutor, nonetheless the learned Public Prosecutor has disregarded the directions issued by this Court and persisted in continuing the irregularities with the result he states that the trial must be held to be vitiated and the conviction must be sel aside. Secondly, he submits that on merit, the conviction or the accused cannot be sustained; thirdly at any rate, the conviction of the accused under section 471 Indian Penal Code is illegal and must be set aside. It is on these submissions the learned Counsel contends that the Order of conviction and sentence passed against the accused is liable to be set aside.

9. In the previous trial it was found that the conviction of the accused was based on the thumb impressions and the exemplar writings of the accused alleged to have been taken by the Investigating Officer on 20th July, 1958, in the presence of the panchayatdars. This Court pointed out that the accused had denied that he ever gave his thumb impressions or the exemplar writings as alleged by the prosecution. The learned Public Prosecutor did not examine either the Investigating Officer who took the thumb impressions ana the exemplar writings of the accused or any of the panchayatdars. The accused examined himself as a witness under Section 342-A of the Code of Criminal Procedure, but the Public Prosecutor did not make any attempt to confront him with the alleged thumb-impres-sions. In the course of the Judgment, this Court pointed out that:

'It is absolutely necessary for the Public Prosecutor to take thumb impression of the accused in the presence of the Sessions Judge on a sheet of paper with the attestation or the Judge on it and then hand over these exemplar impressions to the thumb impression Expert in Court to compare them with the disputed thumb impressions in Court'.

It further observed:

'It is surprising that the learned Public Prosecutor, who conducted the case for the prosecution, did not think it fit or necessary to make a prayer for taking the thumb impressions of the accused-appellant either before the committing Magistrate or during the trials for the purpose of comparing them with the disputed thumb impressions found on the withdrawal forms. Such a course is not only desirable but is absolutely necessary as it eliminates all doubts about the genuineness of the impressions and they can safely be compared. As far as my knowledge goes such a course, viz. taking of thumb impressions in the presence of the Sessions Judge on a sheet of paper with the attestation of the Judge on it and handing over these exemplar impressions to the Thumb Impression Expert in Court to compare them with the disputed thumb impressions in court, if he has brought the microscope and other implements or to take them to his laboratory for comparison with the disputed impressions was invariably insisted upon by the Public Prosecutor.'

10. When the matter went down with these observations, what the learned Public Prosecutor did was to make an application under Section 540 Criminal Procedure Code seeking permission to examine additional witnesses mentioned in the application. The learned Sessions Judge allowed that application and permitted the Public Prosecutor to examine additional witnesses. The Public Prosecutor then examined Andiappa, the Investigating Officer who took the thumb impression and the exemplar writings of the accused. He also examined P. Ws. 3, 4 and 5, the panchayatdars present at the time of taking the thumb impressions and the hand-writings or the accused. But the learned Public Prosecution did not follow the direction issued by this Court in regard to the taking of thumb impressions and the exemplar writings of the accused.

The learned Sessions Judge relying on the evidence adduced by the Public Prosecutor found the thumb impressions and the writings on Exhibits P-3, P-7 and P-8 as that of the accused and convicted him for the various offences. It is contended by the learned Counsel for the Appellant that the infirmity which was pointed out y this Court while setting aside the conviction of the accused still continues in that, the thumb impression and the exemplar hand-writings of the accused were not taken as per the observations of this Court. The accused, he states, has in fact denied that he ever gave his thumb impressions or exemplar writings as contended for by the Public Prosecutor, and therefore this Court should not accept the evidence led by the prosecution to find the accused guilty or the offences with which he has been charged.

11. It is not known why the Public Prosecutor did not follow the direction issued by this Court with regard to the taking of thumb impressions of the accused. When this Court pointed out that the Course indicated regarding the taking of thumb impressions was absolutely necessary to eliminate all doubts about the genuineness of the thumb impressions, it was not right on the part of the public prosecutor to have disregarded the observations made by this Court.

However, it is contended by the learned Government Pleader on behalf of the State that since in the previous trial the fact of taking of thumb impressions was not proved by leading the evidence of the person who took the thumb impressions or of the panchayatdars who attested the same, the learned Public Prosecutor perhaps thought it fit to set right that defect and tried to prove the fact of taking of thumb impressions of the accused by leading necessary evidence. There was no intention, he states, on the part of the Public Prosecutor to disregard the observations made by this Court but bona fide believed that it would serve his purpose if he proved the fact of thumb impressions of the accused.

12. Mr. Srinivasa Rao contends that the Order of retrial is an extreme step to be taken by the Court when the taking of additional evidence will not suffice, and therefore when this Court instead of taking additional evidence under Section 428 Criminal Procedure Code directed a retrial, the learned Public Prosecutor should have followed the direction issued by this Court in regard to the taking of thumb impressions of the accused instead of seeking to produce the additional evidence.

It would have been better, in my opinion, if the learned Public Prosecutor had followed the direction issued by this Court and taken fresh thumb impressions of the accused and then sent the same tor comparing them with the disputed thumb impressions to the Finger Print Expert. But that is only for the purpose of, as this Court has pointed out, to eliminate all possible doubts About the genuineness of the thumb impressions. The Public Prosecutor however in this case has tried to remove or eliminate any possible doubt as to the genuineness of the thumb impressions of the accused taken on Exhibit P-7 by examining four witnesses.

In the circumstances, therefore, I do not think that the course adopted by the Public Prosecutor, hag in any way vitiated the trial or caused any prejudice to the accused. Therefore, the contention of the learned Counsel that the trial of the case, has been vitiated by not following the direction issued by this Court cannot ber accepted.

13. Now, it is not disputed that the accused was a clerk in the Society on the relevant date. It is also not disputed that Syed Murthuza made a deposit in the said Society. It is further proved by the evidence on record that a sum of Rs. 500/-has been withdrawn from the deposit of Syed Murthuza. The question therefore is whether Syed Murthuza has with drawn the amount or whether the accused forged Ex. P-3 and committed the various offences as alleged by the prosecution.

14. Syed Murthuza has been examined as P. W. 6 in the case. He has stated that he did not withdraw any amount from the deposit, nor he has given at any time an application for withdrawal of the said sum to the accused with the thumb-mark. He has further stated that when he was told in the Society that he has withdrawn Rs. 500/- from his deposit he got afraid; he therefore took Muniappa Setty P. W. 7 with him to the Society since it was through him that the deposit was made; the accused was not working in the Society then; they therefore went to the Secretary who asked them to go to the accused and ask him; accordingly, he and Muniappa Setty went to the house or the accused and asked him; the accused told Murthuza that he might go to the next day afternoon and receive from him Rs. 500/-; he along with Muniappa Setty went again to the house of the accused the next day and the accused gave him Rs. 500/-. There is no serious cross-examination of this witness. P. W. 7 Muniappa Setty corroborates the evidence of P. W. 6. The learned Sessions Judge believed the evidence of these two witnesses to hold that Syed Murthuza has not withdrawn the amount. The question then is, who has withdrawn the amount.

15. Now, the withdrawal of the amount has been evidenced by Exhibits P-3, P-4 and P-5. Ex. P-4 is a voucher register and Ex. P-5 is a ledger; they only show that the amount has been withdrawn and debited to the account ot the depositor. The crucial document is Ex. P-3. It is described as 'Application for withdrawal of money from Savings Bank.' It is a printed form issued by Sri Kanyakaparameswari Cooperative Society Ltd., Kolar. On this form, there are two thumb impressions and both of them have been attested by the hand writings.

Therefore, the question is, whose are the thumb impressions and who has attested these impressions. According to the prosecution, these thumb impressions are those of the accused; the writing attesting the thumb impressions is also that of the accused. In order to prove that the hand-writings and the thumb impressions on Ex. P-3 are those of the accused, the prosecution relied upon the evidence of P. W. 13 who took the specimen thumb impressions of the accused on the paper Ex. P-7. He (P. W. 13) also took the exemplar writings of the accused as per Exhibits P-8 and P-9. The prosecution has also relied upon the evidence of the three panchayatdars; P. W. 4 is the attestor of the thumb impressions Ex. P. 7 whereas P. Ws. 3 and 5 are the attestors of thumb impressions and handwritings Exhibits P-7, P-8 and P-9.

It also relied upon the evidence of P. W, 8 Mr. Deshapande, the Finger Print Expert andP. W. 9 Aswatha Reddy, the Hand-writing Expert. It is with the help of this evidence that the prosecution seeks to establish that the thumb impressions and the handwritings attesting those thumb impressions are those of the accused. As I stated earlier, the accused has denied that he ever, gave any thumb impressions or exemplar hand-writings to the Investigating Officer. P. W- 13 Andiappa has stated that he was working as a Police Inspector of Kolar Taluk on the relevant date; that he during the course of the investigation took the thumb impressions of the accused on the paper Ex. P-7 in the presence of the panchayatdars on 20th July, 1958.

He has also stated that he took the exemplar writings of the accused in the presence of theanchayatdars; they are Exhibits P-8 and P-9. In his cross-examination, it is suggested that he has not noted the names of the panchayatdars who were present when he toot the thumb Impressions and specimen signatures of the accused in the case diary. He has also admitted that he has not mentioned the fact of panchanama being made in the case diary, nor has he mentioned the time at which he took those specimen signatures. But he has stated that it was he who took the thumb impressions and the exemplar writings of the accused in the Police Station itself: he then sent for the panchayatdars. who attested the same.

The cross-examination of this witness does not show what he has stated is untrue; that means he took the thumb impressions and the specimen handwritings of the accused on 20th July 1958 in the presence of the panchayatdars. However, when we go to the evidence of the panchayatdars, we find that except P. W. 4 the other two panchayatdars have not supported the prosecution case. P. W. 3 has stated that when he was called at the Police Station the accused was there; he saw then Ex. P-7; the thumb marks on that paper were already being put; the Police then told him that the thumb marks had been put by the accused and that he should attest it; he then attested the same; he did not see the accused putting the thumb marks.

He has also stated that he has signed Ex. P-8 but he has signed it without knowing what it was. He has also admitted that he has signed Ex. P-9 on the same day as he signed Exhibits P-7 and P-8. He has further stated that he does not remember if the writing on it was there when he signed Ex. P-9; the police asked him to sign it and he has signed it.

18. The evidence of P. W. 5 D. P. Venkataramiah is to the effect that he has attested Ex. P-7 since the Sub Inspector of Police asked him to attest it. He has stated that the thumb marks had been put and the endorsements to it had already been written when he attested Ex. P-7. He has also stated that he attested Exhibits P-8 and P-9 but does not know what those documents are. Thus, it would be seen that the evidence of P. Ws. 3 and 5 does not wholly support the prosecution case that the thumb impressions taken on Ex. P-7 and the hand-writing on Exhibits P-8 and P-8 are those of the accused.

However, the evidence of P. W. 4 fully supports the prosecution case as regards the thumb impressions of the accused on Ex. P-7. He has stated that he has attested Ex. P-7 on 20th, August 1958 in the Office of the Inspector of Police at Kolar. Andiappa (P. W. 13) was the Inspector of Police who called him then; the accused Rama Rao put his left thumb marks in his presence at three places and thereafter he attested Ex. P-7. The cross-examination of this witness does not show what he has stated is not true. Thus, the evidence of P. W. 4 wholly supports the evidence of P. W. 13, the Inspector of police, that the thumb impressions of the accused were taken on Ex. P-7 at three places in the Police Station.

17. Now, this document Ex. P-7 was sent to the Finger Print Expert Mr. Deshapande P. W. 8. His evidence is that having received Ex. P-7 containing the specimen thumb impressions and also Ex. P-3 containing the two thumb impressions, he compared the specimen thumb impressions in Ex. P-7 with the two disputed impressions and gave his opinion that the disputed impressions are identical with the specimen left thumb impressions that were found in Ex. P-7. He has given reasons for his opinion. The reasons are, that he found sufficient number of Homologous points of similarity, namely 13 and 14 respectively and they are found in Identical sequence.

He has further stated that it is accepted on all hands that the finding of 12 such Homologous points of similarity in identical sequence in two prints, establishes identity between them beyond any shadow of doubt: he has marked those Homologous points in the enlarged print of the thumb impressions he has taken as per Ex. P-7. In his cross-examination he has admitted that the thumb impressions in Ex. P-7 were the only specimen thumb impressions of the accused sent to him for comparison pertaining to this case. Beyond this suggestion, there is nothing worth mentioning. Thus, the evidence of P. W. 13, P. W. 4 and P. W. 8, if believed, establishes beyond reasonable doubt that the disputed thumb impressions on Ex. P-3 are those of the accused.

18. It has been pointed out by this Court in re: Govinda Reddy, AIR 1958 Mys 150 that :

'The Science of comparison of finger prints has developed to a stage of exactitude.

19. The trial court believed the evidence of these witnesses and after careful consideration of the evidence, I see no reason to differ from the conclusion reached by the trial court. Therefore, believing the evidence discussed above, I hold that the disputed thumb impressions on Ex. P-3 are that of the accused.

20. Then, the prosecution sought to establish that the attesting hand-writing on Ex. P-8 is that of the accused. The prosecution in order to prove the same relied on the evidence of P. W. 13 Andiappa and P. W. 9 Aswatha Reddy. As I stated, P. W. 13 the Police Inspector has stated that he took the exemplar writings of the accused on Exhibits P-8 and P-9 and sent them along with Ex. P-3 to the Hand-writing expert P. W. 9. P. W. 9 Aswatha Beddy has stated that he received a requisition from the Inspector ofPolice along with Ex. P-3 and specimen hand-writings Exhibits P-8 and P-9; he compared the writings in the withdrawal form Ex. P-3 with the exemplar writings, in Exhibits P-8 and P-9; he then round 13 similarities of characteristics mentioned in his deposition.

He gave his opinion that the writing in Ex. P-3 is of the same person who wrote Exhibits P-8 and P-9. In his Corss-examination, it was pointed out that he has not mentioned the reasons for his conclusion in his report. Though he has admitted in his cross-examination that he did not measure the size of the letters yet he has stated that the letters found in Ex. P-3 and in Exhibits P-8 and P-9 are almost of the same size. There is no reason to disbelieve the testimony of the hand-writing expert. However, the learned trial Judge did not wholly rely on his evidence since in his opinion he has not given any reasons for his conclusion in his report.

What weighed with the learned Sessions Judge seems to be that since the Hand Writing Expert did not have the enlarged photographs he was not inclined to believe his testimony. The learned Judge however compared the exemplar hand-writings of the accused with the disputed hand-writing on Ex. P-3 and has given elaborate reasons for his conclusion that the disputed hand-writing on Ex. P-3 is that of the accused.

21. The learned Counsel for the appellant contends that the learned Sessions Judge has played the role of a Hand-Writing Expert while giving elaborate reasons for his conclusion. But, I do not see any impediment in the way of the Court giving elaborate reasons for its conclusion especially when the learned Sessions Judge with his experience was competent to give those elaborate reasons. Thus, the evidence discussed above clearly establishes beyond reasonable doubt that the hand-writing attesting the thumb impressions on Ex. P-3 is that of the accused. Therefore, the evidence so far discussed clearly establishes that the accused has forged the withdrawal form Ex. P-3 and thereby committed an offence punishable under Section 467 Indian Penal Code.

22. It is also clear from the evidence that he had cheated Syed Murthuza by forging this document. It is further clear that he has used Ex. P-3 as a genuine document knowing that the same is a forged document and thereby committed the offences under Sections 468 and 471 of the Indian Penal Code.

23. However, it is contended on behalf of the appellant by Mr. Srinivasa Rao that the conviction of the accused under Section 471 Indian Penal Code cannot be sustained against the accused who has been also found guilty of the offence under Section 467 Indian Penal Code of forging a valuable security. What is contended is that a man who commits forgery cannot also be found guilty of the offence under Section 471 Indian Penal Code if he makes use of such forged document; and in support of that conclusion the learned Counsel relies in the first instance on the language of Section 471 itself. The Section reads as follows:

'Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.'

24. The learned Counsel emphasises the words 'shall be punished in the same manner as if he had forged such document'. He contends that the punishment which is provided for the person who dishonestly or fraudulently uses a forged document is the same which is to be awarded to the person who commits forgery. Therefore, he states that the person who commits forgery cannot also be convicted of an offence under Section 471 Indian Penal Code. The learned Counsel also relied upon a decision in Queen Empress v. Umrao Lal, (1901) ILR 23 All 84. No doubt that that decision supports the contention of the learned Counsel for the appellant. It has been held in that case that:

'A person who, being himself the forger thereof, has used as genuine a forged document, cannot be punished as well under Section 471 of the Indian Penal Code for the use as under Section 466 for the forgery.'

25. The reason given by the learned Judge is that the concluding words 'as if he had forged such document' appearing in Section 471 lead to the conclusion that it is directed against some person other than a person proved to be the actual forger.

26. This decision was followed by the Judicial Commissioner in Digambar v. Emperor AIR 1925 Nag 440. But I find that no reasons whatever have been given by the learned Judicial Commissioner except to follow the decision. However, there is another decision of the Judicial Commissioner in Ismail Panju v. Emperor AIR 1926 Nag 137. The learned Counsel adopts the reasons given in the above decision in support of his contention that a forger cannot also be convicted under Section 471 Indian Penal Code.

It appears from the judgment that the learned Judicial Commissioner was greatly impressed by the reasons given by Aikman J. in the case reported in (1900) ILR 23 All 84. He has also stated that the words appearing in Section 471 Indian Penal Code viz. 'as if he had forged such document' are equivalent to 'as if he had been a forger himself.' Thus it would be seen that Aikman J. and the Judicial Commissioner, relying on the words 'as if he had forged such document' in Section 471 reached the conclusion that, that section applies only to persons other than a forger.

27. However, in both the decisions, the following observations are worth noting:-

28. In (1900) ILR 23 All 84 at p. 85, it has been observed:

'When an accused person is convicted of two different offences, separate punishment for each offence ought to be awarded----'

29. The Judicial Commissioner in the decision in AIR 1926 Nag 137 has observed that:

'It is impossible, in my opinion, to regard these two acts as two separate and isolated offences when the forger and the person who afterwards makes use of the document is one and the same.'

It has also been further observed that;

'Although there was the further physical act of producing the document in Court, this factor does not constitute, in the circumstances of the case, a separate offence.'

30. Thus on facts the learned Judicial Commissioner in the case reported in AIR 1926 Nag 137 came to the conclusion that the act constituted only one offence and on facts, therefore, his decision may be supported.

31. Then, there is a positive statement made by Aikman J. in (1901) ILR 23 All 84 that when an accused person is convicted of two different offences, separate punishment for each offence ought to be awarded. The question, therefore, is whether the acts which constitute an offence under Sections 467 and 471 Indian Penal Code are not different acts. If they are different, then on proof of these facts, it must be held that two different offences are committed and therefore separate punishment must be awarded for each of the offence. In my opinion, what makes the offence under Section 471 is the fraudulent or dishonest use of a forged document as genuine document by a person who knows or reasons to believe to be forged.

Therefore, the act of using such a forged document is by itself an offence. Hence, if a forger uses that document, such uses would constitute an offence under Section 471 Indian Penal Code. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. Therefore, Section 471 covers not only some person other than a forger but also a forger who forges the document and then makes use of it. The forger is not excluded from the operation of Section 471 Indian Penal Code.

The words 'shall be punished in the same manner as it he had forged such document' appearing in that section indicate a measure of punishment to be meted out to a person who uses a forged document dishonestly or fraudulen-tly. A Forged document as stated in Section 470 means a false document made wholly or in part by a forger.

32. Then it has been stated by Aikman, J. and the learned Judicial Commissioner that Section 471 is useful as an alternative charge. When an alternative charge can be framed is stated by Section 236 Criminal Procedure Code. It reads thus:

'If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can he proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.'

33. Therefore, it is clear that the alternative charge can be made only when a single actor series of acts is of such a nature that it is doubtful which of several offences constituted by the act or acts can be said to have been committed by the accused. But the act or acts when proved would constitute the offence of forgery which may fall under any one of Sections 465 to 469 of the Indian Penal Code, are quite different from the act when proved would constitute an offence under Section 471 of the Indian Penal Code. Making use of a forged document is not the same thing as forging a document.

I do not therefore quite see how it could be said that the act or acts which if proved would constitute an offence under Sections 465 to 469 and 471 of the Indian Penal Code are of such a nature as to create a doubt. Therefore, with very great respect to the learned Judges, it cannot be said that Section 471 of the Indian Penal Code is useful as an alternative charge.

34. In my view, therefore, a person who is found guilty of offence of forgery, if he makes use of such forged document, then he can equally be punished under Section 471 Indian Penal Code, but the measure of punishment would depend upon the conviction of the accused of the offence which may be under any one ot the Sections 465 to 469 of Indian Penal Code. When a person is found guilty of two offences, he can be awarded two separate punishments, and therefore a forger can also be punished for making use of such forged document under Section 471 Indian Penal Code.

The view which I take is also the view in the following decisions: (1) AIR 1917 Mad 147: (2) ILR 52 Mad 532: (AIR 1929 Mad 450), (3) (1913) ILR 35 All 63. Therefore, the contention of the learned Counsel that the accused in this case having been found guilty of the offence under Section 467 Indian Penal Code cannot be punished under Section 471 cannot be accepted.

35. Thus, all the contentions urged by the learned Counsel for the appellant in support of his appeal fail. Consequently, for the reasons stated above, I confirm the convictions of the accused holding that he is guilty of the offences under Sections 467, 468 and 471 Indian Penal Code.

36. However, I reduce the sentence of two years rigorous imprisonment for each of the offences awarded by the trial Court to one year rigorous imprisonment for each of the offences. I further direct the sentences to run concurrently.

37. The accused js on bail. He is directed to surrender to his bail bonds and undergo the sentences awarded to him.

38. With this modification, as to sentence, the appeal fails and the same is dismissed.

39. Appeal dismissed.


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