Nisar Ahmed vs State of MP

Hon''ble Mrs. S.R. Waghmare, J.—These are 5 criminal revisions Nos.37/2011, 86/2011, 90/2011, 91/2011 & 92/2011 filed by the same petitioner Nisar Ahmed S/o Ali Mohammad against judgments passed by the same Judge in a series of transactions which are connected to each other and judgment passed in this petition shall govern all the other petitions.

The petitioner Nisar Ahmed is aggrieved by the judgments of conviction passed by the appellate Court in Criminal Appeal Nos. 201/10, 202/10, 203/10, 204/10 & 205/10 passed by the Sessions and Special Judge (SC/ST Act), Rajgarh, Biaora convicting the accused in all the petitions for offences which are mentioned as under:

Section

Fine

Imprisonment

Imprisonment in lieu of fine

420 of the IPC

1 year R.I.

Rs.1000/-

1 month S.I.

467 of the IPC

3 years R.I.

Rs.2000/-

2 months S.I.

468 of the IPC

1 year R.I

Rs. 1000/-

1 month S.I.

471 of the IPC

1 year R.I.

Rs. 1,000/-

1 month S.I.

All the offences taken together would therefore be on five counts each.

Counsel for the petitioner briefly stating the facts of the case indicated that on behalf of the prosecution the then Regional Transport Officer, Rajgarh Shri Brujnarayan Sharma (P.W.1) filed a written report on 28.07.01 at P.S. Kotwali, Rajgarh to state that accused Bhagawan Dash Sahu who was the owner of the registration vehicle bearing No..MP-09-D-573 filed a receipt for Rs. 650/- for the month June, 2001 before the District Officer Rajgarh. On verification of this challan Ex.P/2 from the Distt. Treasury Officer, Rajgarh and State Bank Indore, branch at Narsinghgarh, Regional Transport Officer found that the total amount of Rs. 650/- was neither deposited in the Bank or the Treasury and the first information report Ex.P/14 was filed to this effect before the Police Station Rajgarh. Upon investigation, Ex.P/2 challan and its examination by the handwriting expert, it was found that it was in the handwriting of co-accused Nisar and on completion of the investigation the accused was also duly proceeded and on completion of investigation the accused Nisar was also charged and duly committed to his trial. The trial Court on considering the evidence convicted and sentenced the accused as herein above indicated. The trial Court however acquitted the co-accused Bhagawan Das Sahu and Intekhav @ Balla. The appellate Court upheld the convictions and hence the present revisions for setting aside the impugned convictions. Counsel prayed that the accused be acquitted.

Counsel for the petitioner has vehemently urged the fact that although Ex.P/5 was the written complaint filed by the complainant R.T.O. Brij Narayan Sharma (P.W.1); it is full of discrepancies and there are material omissions and contradictions in his testimony. He urged that in all, 11 witnesses were examined by the prosecution; however none of them have supported the prosecution case but the trial Court however has convicted the accused on the sole basis of the opinion of the handwriting expert that it was Nisar who had committed the forgery in the challan Ex.P/2. Counsel more vehemently urged that the specimen signatures of the petitioner were taken in prison without obtaining proper permission from the Magistrate as is required under the provisions of law. Counsel stated that under Sections 4 & 5 of the identification of prisoners Act 1920, although there should be no possibility of fabrication of evidence and to dispel any suspicion. Counsel relied on Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, whereby the Court held that in such an instance case serious doubt on the circumstances surrounding the prosecution hence Counsel prayed that the conviction be set aside. Moreover one of the panch witnesses of seizure has not been examined whereas the other has turned hostile. The very fact that 5 cases were lodged by the prosecution against the accused on the same day itself was indicative of the fact that the petitioner was victimised by the respondents. Counsel stressed the fact that the material witness B.L. Sharma (P.W.1) the complainant was not reliable witness. Similarly Shafiq Khan (P.W.9) who was the driver and manager of the accused Bhagawan Das Sahu has categorically stated along with Zabir (P.W.10) another driver that Nisar, the present accused petitioner; was merely an agent who had been granted the money for payment of the tax of the buses owned by Bhagawan Das Sahu.

Counsel vehemently urged the fact that accused Bhagawan Das Sahu had been exonerated completely and acquitted by the trial Court itself, then under these same set of circumstances present petitioner Nisar was merely the agent of Bhagawan, he ought to have been acquitted also. There is no evidence on record to prove that he had tampered with the challan regarding payment of tax and the evidence of P.W.3 Anil Shrivastava the handwriting expert has been relied solely for the conviction. Whereas it is trite to state that the opinion of the handwriting expert is a weak type of evidence and unless corroborated, it ought not to have been relied for conviction. He prayed that the conviction be set aside.

In the alternate Counsel stated that considering the fact that the petitioner is only 42 years of age and the prayer may be considered that even if this Court was satisfied regarding the conviction, the custodial sentence be reduced to the period already undergone. He urged that the petitioner has almost undergone 4 months in the trial Court and 14 months at the appellate stage till today, totalling the custodial period to 1 1/2 years. The sentence in each case at the maximum being 3 years it may be directed to run concurrently in all the five cases.

Per contra Counsel for the respondent/State has urged that the statement of Shafiq Khan (P.W.9) has been recorded by the trial Court and he was the best person to give information since he was the manager of Bhagawan Das along with Mahendrasingh. He has deposed before the Court that the tax for the three buses was given to Nisar Ahmad to be paid at the transport office, whereas he has paid forged challan having the false seal and signatures of the Bank and it was Nisar who filed the disputed tax receipts before the R.T.O. at Rajgarh. Thereafter it was he who had paid the tax along with the penalty in the transport office. Moreover Counsel stated that there was no valid reason offered by the defence as to why the handwriting opinion of Shri Anil Shrivastava P.W.3 could not be relied. He was fully qualified and certified to be shown by the National Offence Health and Law Science Institute, Home Ministry, New Delhi and certified by the Govt. to be the handwriting expert, then public officer in the course of the duty should not be doubted unnecessarily. Moreover the opinion of these witnesses is also corroborated by Zabir (P.W.10) who seems to be an independent witness and has categorically stated that money was handed over to Nisar to be paid as tax for the said buses and Nisar received commission on each bus at the time of payment of tax. He has stated in impugned para-4 that he used to receive Rs. 150/- per challan and almost Rs. 10,000/- was paid as tax every month upon a single bus. Then under these circumstances Counsel stated that there was no need to doubt the statements of these witnesses and there was documentary evidence on record available which indicated that the accused Nisar present petitioner was fully responsible for the forgery and fraud committed thereby. He prayed for dismissal of the petition.

However, Counsel for the respondent/State has not opposed the prayer of the Counsel for the petitioner that the sentence may be directed to run concurrently since it is reasonable under the circumstances.

Considering the above submissions I find that the judgments of the Court below are fully in accordance with the provisions of law. There is no infirmity which can be set aside. There is proper marshalling of evidence as already noted above. The handwriting expert is a qualified handwriting specialist certified by the Central Govt. Moreover the testimony is corroborated by Shafiq Khan P.W.9 and Zabir P.W.10. The ratio of Mohd. Aman (supra) is not applicable to the petitioner in the present case because primarily in the said case the Court was considering the fact that the signatures of the accused were not taken on some of the articles which were recovered and kept in the Police Station and the specimen fingerprints of the accused had not been taken in the presence of the Magistrate. Whereas in the instant case although specimens signature of the accused petitioner have been obtained in the prison, no such ground was made before the trial Court also and there was no need to doubt the veracity of the public officer Shri Anil Vijaywargiya. The rules are purely procedural in nature and no malafides have been impugned to the said authority by the petitioner and in this light the case is of no use to the petitioner.

Consequently under these circumstances I have no hesitation in upholding the conviction and sentence of the accused for the aforesaid offences. Moreover considering the custodial sentence that is undergone by the petitioner the sentence cannot be reduced to the period already undergone for the simple reason that there is conviction for the same offences in all the five cases. However the important fact that cannot be marginalised that the 5 cases are dealt by the same Judge and are part of the series of transactions by the same accused. And hence considering the prayer u/s 427 of the Cr.P.C. it is directed that the sentence shall run concurrently in all the five revisions.

With the aforesaid directions the revisions are partly allowed only to the extent herein above indicated.

Let a copy of this order be retained in the record of the connected Criminal Revisions Nos.86/2011, 90/2011, 91/2011 and 92/2011.