R. Ramamoorthy vs State

K.B.K. Vasuki, J.—The accused filed this revision petition challenging his conviction for the offences under Sections 465, 468 and 471 IPC by the trial court as confirmed by the lower appellate court.

The facts, which are relevant for consideration herein are as follows; The accused belongs to puliysmpatti village, Mettupatti at Omalur Taluk. Salem District and his father was employed in the Office of the Treasury. Anthiyur and he died, while he was in service. The accused made an application on 30.12.1996 for his employment in Sub Treasury Office on compassionate ground and he was given employment under compassionate ground on 15.10.1998 as Junior Assistant and Typist at Sub Treasury. Anthiyur and at the time of joining employment, he produced relevant records in support of his education and other qualifications and after due verification of the same, he was permitted to join the office, while so, his school certificate was, during January 2002, forwarded to the Director of Board of Secondary Education, Tamil Nadu for verification for the purpose of his regularization and the same was, after verification in the Office of the Board of Secondary Education, reported to be forged one and the same was duly intimated to the Director of Examinations, who in turn informed to the Commissioner, Treasury for initiating appropriate legal action against the accused. The same was followed by a complaint sent to the Superintendent of Police, Erode by the Director of Examinations to the effect that the school certificate produced by the accused contains corrections in respect of the marks obtained and other particulars in the manner as mentioned in the complaint. The complaint was forwarded to the Inspector of Police, Crime Branch, Erode and registered as Crime No. 7/2002 for the offences under Sections 465, 468 and 471 IPC and the same was duly investigated into and charge sheet was filed against the accused for the offences as referred to above.

The prosecution has in order to prove the guilt of the accused for the offences abov ereferred to examined the Deputy Director Government Examination, Chennai, Record Keeper O/O. Directorate of Government Examinations. Chennai, P.A. to Special Commissioner. Treasury, Chennai, Deputy Director i/c in the O/O. Commissioner Treasury and Accounts; Assistant Treasury officer. Anthiyur Treasury Office; Headmaster, Hindu Mahajan Higher Secondary School., Salem; Correspondent of Tutorial College, Salem where the accused studied and the Inspector of Police, District Crime Branch, Erode as PW1 to PW12 and has produced exchange of communication between Treasury Office and Directorate of Government Examinations, Chennai regarding the verification of the mark sheet, complaint. FIR, original certificate produced by the accused and the extract of Totalmark Register [hereinafter shortly referred to as "TMR"], relevant G.O., application of the accused, for appointment on compassionate ground, proceedings of Sub Treasury Office, Anthiyur relating to suspension of the accused, records obtained from the Head Master, Hindu Mahajan Higher Secondary School, Salem, statements obtained from the mother of the accused, copy of the proceedings dated 9.10.1998, appointment order and other documents collected in the course of investigation as Exs. P1 to Ex.P23. No oral and documentary evidence was adduced on the accused side. When he was questioned about the incriminating substance found against him in the prosecution side evidence, he denied the same as false and pleaded innocence.

The trial court on the basis of the available records found Ex.P4 certificate produced by the accused as forged one and found him guilty and convicted and sentenced him for the offences under Sections 465, 468 and 471 IPC. Aggrieved against the same, the accused preferred C.A. 101 of 2007 the appellate court confirmed the judgment and sentence of the trial court. Hence, this criminal revision before this court by the accused.

The learned counsel for the petitioner/accused in this revision petition seriously questioned the correctness of the findings of the guilt recorded by the trial court as confirmed by the appellate court as one without any evidence and by overlooking material particulars and by ignoring the genuineness of materiel document particularly Ex.P4 mark sheet.

Per contra, the learned counsel for the state would defend the impugned order of conviction and sentence mainly by relying upon the oral evidence of the witnesses and Ex.P7 extract of TMR.

Heard the rival submissions made on both sides.

The charges framed against the accused is that Ex.P4 (Ex.P11) Secondary School Leaving Certificate (herein after shortly referred to as ''SSLC'') produced by him is forged one. It is not in dispute that the certificate was produced by the accused at the time of his employment during 1998 and he was given employment and posting after due verification of the records. Even Ex.P8 his regularization proposal dated 8.12.1998 sent by the Erode, Treasury Officer, in-charge to the Commissioner of Treasuries and Accounts. Chennai would say that his date of birth is 18.5.1967 and he passed 10th standard in new pattern held during March 1997 and he satisfied both educational and other qualification prescribed for appointment as Junior Assistant-cum-Typist under common categories and in support of his educational qualification, SSLC and TC in original alongwith other documents were enclosed alongwith the proposal forwarded to the Commissioner of Treasuries and Accounts, Chennai. The fabricated nature of the document was, according to the prosecution, brought into light only on verification of the same in the Office of the Government of Examinations with the relevant entries made in TMR produced as Ex.P7. It is true that Ex.P7 Extract; contains the particulars of Examination Year and pattern of the examination. Educational District. Centre, School, Register number, TMR Code No. and the name of the candidate, classification, Sex, Date of Birth and marks obtained in each subject etc. According to the Prosecution, the mark particulars contained in Ex.P7 TMR Extract do not tally with Ex.P4 (Ex. P11) SSLC submitted by the accused at the time of employment. Except Ex.P7, no other satisfactory direct or oral evidence is available to prove fabrication of alteration or correction allegedly made in Ex.P4 or the marks portion contained in Ex.P4.

Further, the prosecution has not come forward with any definite case as to the mode of alteration allegedly made by the accused. The prosecution has alleged different manner of alteration on one hand, it is alleged that Ex.P4 SSLC is forged, but on the other hand, it is alleged that the mark particulars contained in Ex.P4 is altered in such a manner to have a pass in 10th standard.

Be that as it may, the only document available herein to prove either of the case of the prosecution is Ex. P7 TMR. Whereas, the prosecution did not think fit to either collect or produce original TMR. What was produced herein is Ex. P7 Extract of TMR. It is also categorically admitted by PW3 that Ex. P7 Extract is not collected by the Investigating officer in the course of his investigation. But the same was produced by PW3 only at the time of her examination in the witness box. There is absolutely no explanation forth coming on the part of the Investigating Officer for his failure to seize either the original register or Extract in the course of his investigation and in the absence of one such explanation, no authenticity can be attached to Ex.P7 Extract. Excluding this document, no other document is available to substantiate the allegation regarding fabrication of Ex. P4.

Even otherwise, when Ex.P7 is admittedly secondary in nature, the same cannot be permitted to be let in as evidence without fulfilling the condition laid down u/s 65 and without obtaining any permission from the court by filing proper affidavit with full details necessary to attract the provisions of Section 65 of the Act. The argument so advanced on the side of the accused is also fortified by the judgment of the Supreme Court reported in State of Rajasthan and others v. Khemrah and others 2009 (9) SCC 241 and Smt. J. Yashoda Vs. Smt. K. Shobha Rani,

The legal infirmity in the reception of Ex.P7 as evidence is sought to be cured by the learned Additional Public Prosecutor by resorting to the observation of the Supreme Court in State through Inspector of Police, A.P. Vs. K. Narasimhachary, It is sought to be argued by the Additional Public Prosecutor that the document being a public document, the authenticity cannot be challenged and any objection regarding the admissibility of the same having not been raised before the trial court cannot be permitted for the first time, at the appellate stage. However, the case dealt with by the Supreme Court, in my considered view, is distinguishable on facts that what was produced before the other Court is the certified copy of the original certified to be the true copy by the competent authority as provided u/s 76 of other Indian Evidence Act. But, the nature of the document produced herein is only an extract without such authentication and cannot be attached equal importance for the reasons discussed below.

The manner in and the time at which Ex.P7 extract was received by the court is not in accordance with the procedure laid down under law. Ex.P7 Extract is also not proved to be the true extract from the relevant register. The perusal of the document discloses that the same contains two signatures and one initial and it is signed by (i) custodian of mark registers. Directorate of Government Examinations. Chennai and (ii) Secretary. Board of Secondary Education, Chennai and the signatures are with dates viz. 25.7.2002 and 25.10.2002 which means the same is not available on the date of filing of the complaint and on the date of filing of the charge sheet. In addition to the signatures of the Custodian of Mark Registers and the Secretary, there are two more columns i.e. (i) written by and (ii) verified by. The first column written by is with initial, but without any signature. The other column has neither initial nor signature. PW2, who is one of the signatories of the document is, in the witness box not able to furnish particulars of the name of the person who initialed the column written by'' and as to who verified the same whereas two witnesses claimed to have verified Ex.P4 SSLC with TMR and to have written Ex.P7 extract. They are PW3 and PW4, who are then record keepers in the Directorate of Government Examinations. Both PW3 Latheef Iqbal and PW4 Sukumaran have claimed the initial found in Ex. P7 as that of their own and it is not clarified on the side of prosecution as to who is the actual person who did the actual verification of Ex.P4 with that of original TMR and as to who prepared Ex. P7 Extract.

Thus, unexplained failure to produce TMR in original and unexplained delay in producing Ex.P7 Extract, inconsistency In the evidence of PW2 to PW4 about the person by whom and the manner in which the verification is done and extract is prepared and the failure of the prosecution to come out with specific case regarding the manner of alteration as discussed above, ought to have been seriously taken note of by the courts below so as to reject the prosecution theory. The courts below failed to consider that the order of conviction for any act of forgery is likely to deprive the person guilty of such act for any employment in future, as such the courts below ought to have called upon the prosecution to prove the exact manner of fabrication of the document or alteration or correction in the document through direct and best evidence available in their hands and the courts below ought to have rejected the prosecution theory in the event of any failure of the prosecution to do so and extend the benefit of doubt to the accused. However, both the courts below have committed gross irregularity and illegality in overlooking the materials and the serious contradictions in the prosecution case as discussed above, which are likely to shatter the foundation of the prosecution case.

It is also noteworthy to mention at this juncture that the categorical admission of PW2, Secretary, Board of Secondary Education found in the document is genuine one, would totally falsify the prosecution theory of fabrication, alteration or correction. Though, an attempt was made on the part of the prosecution to introduce new theory as if the genuineness of the signature in Ex.P4 could not be ascertained due to destruction of the office seal, no such statement is obtained by the Investigating Officer from any of the officials in this regard. Further, in the absence of any previous section 161 statement about want of facility to ascertain the genuineness of the signature, the admission of PW2 regarding the genuineness of the signature has to be necessarily accepted as uncontroverted one and the same runs contra to the theory of fabrication of the document.

The other version that marks portion alone was altered, is also not made out by the prosecution. The very cursory look at the document does reveal correction or alteration. No step is also taken by the Investigating Officer to send the document for expert opinion to prove the alteration theory and mode of alteration. That being the doubtful nature of the charges alleged and doubtful nature of the evidence adduced, the courts below are not justified in overlooking the serious defects and infirmities in the prosecution case and the findings rendered by the courts below are based on misconception of evidence and are hence, erroneous and perverse in nature and the judgments of conviction of the courts below on the basis of such findings deserve interference.

In the result, the Criminal Revision is allowed by setting aside the judgment of conviction and sentence dated 17.09.2007 made in C.A. No. 101 of 2007 on the file of Additional District Judge cum Fast Track Court No. 1, Erode confirming the judgment of conviction and sentence dated 20.04.2007 made in CC.No. 431 of 2002 on the file of Judicial Magistrate No. III, Erode and the accused is acquitted from the charges. The bail if any executed by the accused shall stand cancelled and the fine amount if any paid by accused shall be refunded to him.