K. Ayyadurai vs Raja Ramanathan

R. Mala, J.—This Revision is directed against the judgment of acquittal passed by the learned Judicial Magistrate No. I, Kulithalai, in C.C.No. 39 of 2007, dated 12.06.2008.

The case of the prosecution, in a nutshell, is as follows:

(i) P.W.2 Ayya Thurai, the de facto complainant obtained a licence for quarrying granite stones in Survey No. 260/1C. The said licence was marked as Ex.P.1. He entered into a partnership deed with A-1 to A-5. The original deed was kept by A-1 and he handed over the xerox copies to others. P.W.2 filed the same before the learned District Munsif, Kulithalai, in respect of the suit filed against him by A-1 in O.S.No. 516 of 2004. The signature found in page Nos. 1 to 5 of Ex.P.3 filed in the case on hand is that of him. In paragraph No. 9 of page No. 5 in Ex.P.3, it was mentioned that ''the Managing Partner Mr.M.Raja Ramanathan and Partner Mr.K.Ayya Thurai are hereby authorized to open and operate all types of Bank Accounts jointly with any Bank''. The partnership continued for three to four months. Thereafter, due to misunderstanding, he cancelled the partnership deed. After dissolution of the partnership firm, A-1 Raja Ramanathan, claiming right in the partnership firm, filed a suit in O.S.No. 516 of 2004 before the learned District Munsif, Kulithalai. A-1 also forged a document in support of his claim in collusion with other co-accused. It was served on the petitioner herein, the de facto complainant, who, in turn, handed over the same during police enquiry. The said document was marked as Ex.P.4. In paragraph No. 9 at page No. 5 of Ex.P.4, it was mentioned that ''the Managing Partner Mr.M.Raja Ramanathan and Partner Mr.S.Viswanathan are hereby authorized to open and operate all types of Bank accounts jointly with any Banks''. The signature found in Ex.P.4 is not that of him. Hence, the same was sent for obtaining the expert opinion. Since the signature varied, he gave a complaint Ex.P.5 to the Superintendent of Police, Kulithalai.

(ii) On receipt of intimation and complaint from the Deputy Superintendent of Police, Kulithalai, P.W.8 Krishnasamy, the Inspector of Police, registered an F.I.R. Ex.P.9 against the accused for the offences punishable under Sections 465, 468, 467, 469 and 471 r/w 120(b) IPC. He took up the case for investigation and recorded the statement of the de facto complainant and A-1 and thereafter, he handed over the case to P.W.9 Sampath Kumar for further investigation.

(iii) P.W.9 Sampath Kumar took up the case for investigation on 19.09.2005 and recorded the statements of witnesses and laid the final report against the accused for the offences punishable under Sections 464 r/w 465, 471 r/w 468 and 34 of Indian Penal Code.

(iv) The learned trial Judge, after following the procedures, framed necessary charges against the accused. Since the accused denied the same in toto and pleaded not guilty, to prove the charges, P.Ws.1 to 9 were examined and Exs.P.1 to P.9 were marked, on the side of the prosecution. On completion of the examination of the witnesses on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied the same as false. On behalf of the defence, neither the witness was examined nor document was marked.

(v) On consideration of evidence available on record, the learned Judicial Magistrate No. 1, Kulithalai, finding that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, acquitted the accused Nos. 1 to 5 from the charges levelled against them for the offences punishable under Sections 464 r/w 465, 471 r/w 468 IPC and accused Nos. 6 to 9 from the charges levelled against them for the offences punishable under Sections 464 r/w 465, 471 r/w 468 and 34 IPC.

Challenging the judgment of acquittal passed in C.C.No. 39 of 2007, dated 12.06.2008, acquitting the respondents 1 to 9/accused from the charges levelled against them, the present revision has been preferred.

Heard the submissions made on either side.

The learned counsel for the petitioner would submit that the petitioner, who is the de facto complainant, entered into a partnership agreement with A-1 to A-5/Respondents 1 to 5 herein for quarrying granite stones, a copy of which was marked as Ex.P.3. The partnership deed received from the Munsif Court on necessary application was marked as Ex.P.4, in which, at page No. 5, the signature of Ayya Thurai, P.W.2 has been forged by A-1 to A-5 in collusion with with A-6 to A-9 and that factum was not considered by the Trial Court.

Adding further, the learned counsel would submit that after obtaining licence for quarrying granite stones, P.W.2 Ayya Thurai (de facto complainant) and Raja Ramanathan (A-1) opened an account in Indian Overseas Bank, Thogaimalai Branch, Karur in their name. That has been spoken to by P.W.1-Rengachari. P.W.2 is the de facto complainant. The first respondent herein/A-1 filed a suit in O.S.No. 516 of 2004 on the file of the learned District Munsif, Kulithalai, after dissolution of the partnership deed and at that time, Ex.P.4 forged document has come to light. Immediately, the document was sent to Forensic Department for getting an Expert opinion, since the signature found in page No. 5 of Ex.P.4 is not that of the signature of P.W.2, the de facto complainant. After obtaining opinion, P.W.2 gave a complaint, since the signature found in Ex.P.4 is different from the signature found in Ex.P.3 and on that basis, a case has been registered against the accused for the offences as stated above and on completing the investigation, charge sheet has been laid. To prove the guilt of the accused, P.Ws.1 to 9 were examined and Exs.P.1 to P.9 were marked. However, the Trial Court, without considering the fact that the document Ex.P.4 is a forged one and without considering the evidence of Scientific Assistant, has acquitted the respondents 1 to 9/accused. He would further submit that A-1 to A-5 are the beneficiaries of the document. They alone forged the signature of P.W. 2 and that factum was not considered by the Trial Court. Hence, he prayed for setting aside the judgment of acquittal.

Resisting the same, the learned respective counsel appearing for respondents 1 to 9 as well as the learned Government Advocate (Criminal side) appearing for the tenth respondent would submit that the Trial Court has given a cogent reasoning for acquittal. They would further submit that as per the dictum of the Apex Court, if two views are possible, the view favouring the accused should be taken into consideration. They would further submit that if there is any iota of evidence, the appellate Court shall not interfere with the finding of the judgment of acquittal, unless the judgment of the Trial Court is illegal and perverse. Hence, they prayed for dismissal of the revision.

Considering the rival submissions made by both sides and on a perusal of the typed-set of papers, it is an admitted fact that P.W. 2, the revision petitioner herein obtained a licence for quarrying granite stones in Survey No. 260/1C. There is no quarrel over that. It is also an admitted fact that P.W.2 entered into an agreement with A-1 to A-5 on 11.06.2004. It was marked as Ex.P.3. P.W.2 himself has admitted the signature found in the said document viz., Ex.P.3.

At this juncture, it is appropriate to consider the finding given by the Trial Court. The Trial Court has given a finding that P.W. 2 himself has admitted that there was only one transaction by the time partnership agreement is in force and he has not suffered any monetary loss. There is no evidence to show that the accused obtained a wrongful gain in view of the forged document. Further, it was stated that there is no evidence to show that who concocted or forged the signature found in Ex.P.4 at Page No. 5. It was also held that Ex.P.3 document has not been signed by all the partners at the same time. As such, no one can say as to who signed first, who signed second and where it was signed. It is also pertinent to note that specimen signature of P.W.2 Ayya Thurai has not been obtained and sent to Forensic Department. On that basis only, the Trial Court has acquitted respondents 1 to 9/accused by giving benefit of doubt in their favour.

Now, this Court has to consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubt?.

It is appropriate to incorporate Sections 464, 465, 468 and 471 of Indian Penal Code, which read thus:

"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 electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,

with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed 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 electronic 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 electronic 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 alteration.

Punishment for forgery.- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Forgery for purpose of cheating.- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extent to seven years, and shall also be liable to fine.

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."

In the case on hand, Ex.P.3 is a genuine document. Ex.P. 4 is a forged one, that too, at page No. 5 and paragraph No. 9, instead of ''Ayya Thurai'', the name of one ''Viswanathan'' has been included for operating account. P.W.2, the de facto complainant, in his evidence, has clearly deposed that after the execution of partnership deed, Ex.P. 3 came into existence and at that time, there was only one transaction and in respect of money transaction, no loss caused to anybody.

Now, this Court has to decide whether the document Ex.P.4 is a forged one?

As per the evidence of P.W.6 Vasantha Sundari, the signature found in Ex.P.3 is varied from the signature found in Ex.P.4. Admittedly, the specimen signature of P.W.2 the de facto complainant has not been obtained and sent to Forensic Department for comparison. That factum was correctly considered by the Trial Court. In such circumstances, the main ingredients for the commission of offences have not been proved by the prosecution beyond all reasonable doubt. Furthermore, P.W.3 Prabhakaran and P.W.4 Senthil Kumar have turned hostile and they have not supported the case of the prosecution. P.W.2 himself stated in his evidence that he signed Ex.P.3 only at his Thogaimalai Office and his signature has been obtained by A-1. He also fairly conceded that all the partners have not signed at the same place. P.W.2 has not stated as to which accused has forged the signature found at page No. 5 of Ex.P.4. In such circumstances, I am of the view that the ingredients of Sections 464 and 465 of Indian Penal Code have not been proved by the prosecution beyond all reasonable doubt. Merely because P.W.6 Vasantha Sundari, Scientific Assistant, has stated that the signature found in Ex.P.4 is not that of the signature of P.W.2 as found in Ex.P.3, it will not be considered as a reason for coming to a conclusion that the document has been concocted by A-1 to A-5 in collusion with A-6 to A-9 and the accused have not obtained a wrongful gain, by forging the document.

Considering all those things, I am of the view that the Trial Court has considered all the aspects in proper perspective and came to the correct conclusion. Hence, I do not find any reason to interfere with the finding of the Trial Court and hence, it is, hereby, confirmed.

In fine, the revision deserves dismissal and is dismissed accordingly.