Mahadeo @APPELLANT@Hash State of Rajasthan & Ors.

This Criminal Revision petition under sec.397 CrPC has been filed against order dated 19.02.1999 passed by the Additional Sessions Judge, Barmer in

Cr. Appeal No.06/1998 whereby he has upheld the conviction of petitioner for offence under sec.467 IPC, recorded by the learned Chief Judicial

Magistrate, Barmer in Cr. Original Case No.549/1992 and modified the sentence of imprisonment from one year to 06 months and maintained fine of

Rs.500/-, in default of payment of fine to further undergo simple imprisonment for three months.

Briefly stated, on 11.10.1992 certain papers were received to Police Station, Kotwali, Barmer from office of the S.P., Barmer, inter alia, alleging that

MPW Mahadeo had obtained appointment in Malaria Department by obtaining a false Transfer Certificate of 8th Standard from Government Upper

Primary School No.3, Barmer. On these allegations, a case under secs.467 and 471 IPC was registered and after investigation, challan was filed

against the petitioner for offence under secs.467, 471 IPC.

It is contended that the prosecution did not examine the person whose signature alleged to be appended on so-called forged Transfer Certificate. Be

that as it may, after the trial, the learned trial judge convicted and sentenced the petitioner for offence under sec.471 IPC.

It is contended that the learned trial judge did not comply with the mandatory provisions of sec.360 CrPC while considering the question of sentence.

The petitioner preferred an appeal against his conviction and sentence, in which the appellate court maintained the conviction but modified the

sentence as aforesaid. Being aggrieved, the petitioner has preferred this Criminal Revision petition.

It is contended that the learned trial judge as well as learned appellate judge have erred in law in convicting and sentencing the petitioner. The most

outstanding feature of the case is that the prosecution did not care to examine the person whose signature were allegedly forged on the Transfer

Certificate and in such circumstances, it can not be proved that the petitioner had either forged or used said forged document intentionally. The

learned trial judge has himself come to a finding that the petitioner was not responsible for forging of the Certificate. None of the witnesses concerned

with issuance of the Transfer Certificate were examined so as to prove that said document was forged by the petitioner. That apart, it has not been

proved by any of the witnesses that the petitioner had submitted the Certificate, which was allegedly forged.

It was further argued that the sentence awarded is out of proportion and vitiated on account of non-compliance of mandatory provisions of secs.360,

361 CrPC.

Per contra, learned Public Prosecutor has vehemently opposed the contentions raised by the petitioner.

Heard rival submissions of the parties and perused the judgments and evidence placed on record.

Learned Chief Judicial Magistrate while passing the judgment dated 26.03.1998 gave finding that for TC No.70/1971, at the Entry Number name of

the accused-petitioner was not found and as per record, name of other person is there, as per statement of PW3 Harnarayan, Headmaster of the

school. On the basis of evidence placed on record, the learned trial judge came to the conclusion that the document was forged but there is no

evidence on record by the prosecution that accused-petitioner committed the said forgery of the document. No prosecution witness has seen the

accused-petitioner to prepare said forged document nor any hand-writing expert was called in evidence to prove that the accused-petitioner prepared

alleged forged document. On that basis, learned trial judge came to conclusion that the prosecution has failed to prove beyond reasonable doubts the

commission of offence under sec.467 IPC by the accused-petitioner.

However, the learned trial judge held the accused-petitioner guilty of offence under sec.471 IPC. The learned counsel for petitioner has contended

that when there is no forgery by the accused-petitioner then neither sec.467 nor sec.471 of the Code are attracted.

For the purpose of offence under sec.471 IPC, one of essential ingredients is knowledge or reasonable belief on the part of person using the document

that it is forged one {1981 CrLJ 1301: Madan Mohan Sharma And Ors. vs Smt. Renuka Sharma} but the mere fact that the accused was found to be

in possession of the forged document would not justify the conclusion, in absence of any other material that he knew or had reasons to believe that the

document was forged {AIR 1963 SC 822: Radhakishan vs State Of U.P.}. When there is no evidence at all to show that the accused knew or had

reasons to believe that the document in question was forged one and without that requisite knowledge the accused had used that document, the

accused could not be convicted under sec.471 IPC {AIR 1979 SC 1506: Abdul Karim Madan Sahab vs State Of Mysore}.

In view of above settled legal position, learned Chief Judicial Magistrate, on the basis of presumptions and surmises assumed that the accused-

petitioner had knowledge of said forged document. There is no evidence placed on record by the prosecution from which it can be inferred that the

accusedpetitioner had knowledge of said document being forged or reasonable belief that it is forged one and used that document with such

knowledge.

Mere filing a copy of said forged document itself does not amount to using of original document but filing of such copy with the knowledge that it is

copy of a forged document would amount to using of forged document. It is also important to note that the prosecution examined PW3 Harnarayan,

Headmaster of the school.

In the cross-examination, this witness has stated that the Transfer Certificate Ex.P1 bears signature of Aditya Ram, Headmaster and as per record,

Aditya Ram was working as Headmaster at the relevant time. Aditya Ram was not examined as witness by the prosecution before the trial court and

on the basis of evidence placed on record, the trial court has come to conclusion that there is no evidence placed on record by the prosecution that the

document was prepared by accused-petitioner.

When said document was not prepared by the accusedpetitioner then in such circumstances, it can not be presumed that the accused-petitioner was

having knowledge that it is a forged document and with that knowledge he used the document. In such circumstances, when there is no evidence at all

to show that the accused-petitioner knew or had reasons to believe that the document in question is forged one and with that knowledge has used said

document, the accused-petitioner can not be convicted for offence under sec.471 IPC.

In view of above discussion, the Revision petition is allowed. The impugned judgment dated 26.03.1998 passed by the Chief Judicial Magistrate,

Barmer in Cr. Case No.459/1992 as well as impugned appellate judgment dated 19.02.1999 passed by the Additional Sessions Judge, Barmer in Cr.

Appeal No.06/1998 are set aside. The petitioner is acquitted of the charge for offence under sec.471 IPC also. The petitioner is on bail. His bail bonds

are discharged.