Shri Robeth Rai vs State of Sikkim

S.P. Wangdi, Actg. C.J.

This revision petition is directed against the judgment dated 23-09-2010 of the learned Sessions Judge, Special Division - I, Sikkim at Gangtok, in Criminal Appeal No. 13 of 2010 (hereinafter referred to as the "impugned judgment").

The brief facts of the case are that on 18-11-2005, the Ranipool Police Station received a written FIR from one Shri S.B. Rai, Manager (Finance & Administration) of Sikkim Scheduled Castes, Scheduled Tribes and Other Backward Classes Development Corporation Limited, a Government of Sikkim Undertaking, Gangtok (hereinafter referred to as the "SABCCO") stating that one Robeth Rai, S/o Shri Bir Bahadur Rai, Peon of the SABCCO (Petitioner herein) obtained a loan from UCO Bank, Ranipool Branch, East Sikkim, by forging his signature on a departmental undertaking. Based on this information, Ranipool Police Station Case No. 23(11)05 dated 18-11-2005 under Sections 420/468/471 of the Indian Penal Code (IPC) was registered against the Petitioner for investigation. On completion of the investigation, charge sheet was filed against the Petitioner under Sections 420/468/471 IPC with a supplementary charge sheet subsequently filed on receipt of the expert opinion of the Government Examiner of Questioned Documents (GEQD), Directorate of Forensic Sciences, Ministry of Home Affairs, Government of India, Kolkata. The trial of the case registered as General Register Case No. 4 of 2006, was held before the learned Judicial Magistrate, East & North Sikkim at Gangtok. On completion of the trial, the learned Judicial Magistrate held the Petitioner to be guilty of the offences and convicted and sentenced him accordingly. Against this, an appeal was filed before the learned Sessions Judge, Special Division - I, Sikkim at Gangtok being Criminal Appeal No. 13 of 2010 and by the impugned judgment of the said Court dated 23-09-2010 upheld the conviction and sentence of the learned Judicial Magistrate.

In the revision petition, the Petitioner has raised the same questions that were raised in appeal before the learned Sessions Judge, Special Division - I.

Heard.

Mr. K.T. Bhutia, learned senior counsel who represented the Petitioner while pressing the revision petition primarily urged the following grounds:

(i) That there was an inordinate delay in filing the FIR by the complainant who deposed as PW1, as it was filed 7 (seven) days after the alleged offence and that although in his evidence the complainant, PW1, while explaining the delay, had stated that there was a departmental enquiry which took 4 days, yet the FIR was lodged only 3 (three) days after completion of the enquiry.

(ii) That no permission from the superior authority was sought for by the complainant, PW1, before doing so against the Petitioner as was necessary being an employee under SABCCO and subordinate to him.

(iii) That there was no case of forgery made out against the Petitioner from the fact that other than the denial of the complainant, PW1, the signature appearing on the questioned salary certificate, Exhibit 2, and the inconclusive opinion of the GEQD on the signature, there was no other evidence.

(iv) That the prosecution had failed to establish that the Petitioner obtained loan from the UCO Bank, Ranipool Branch.

(v) That the Appellate Court erroneously relied upon Exhibits 10, 11, 12 and 13 by holding they were signed by the Petitioner without those signatures being indentified.

(vi) That none from the firm, M/s. Mother Queen Electronics of Ranipool Bazar with whom the UCO Bank had a tie up, had been examined as witness as the evidence of such witness was essential to establish the fact that it was the Petitioner who had obtained the loan by submitting the questioned document, Exhibit 2.

(vii) That the statement of the Petitioner recorded u/s 27 of the Indian Evidence Act, 1872, on the basis of which the recovery of the questioned document were made, was of no effect, redundant and irrelevant as the complainant, PW1, was already aware of the fact that the documents including the questioned document, Exhibit 2, were lying with the UCO Bank.

(viii) That the complainant, S. B. Rai, PW1, was an interested person keen to secure conviction of the Petitioner which is evident from the fact that he had initially rushed to lodge an FIR against the Petitioner who was an employee under him without seeking necessary approval of the superiors and in justifying the delay in filing the subsequent FIR.

In support of his submission, Mr. Bhutia, learned senior counsel, relied upon various portions of the evidence available on the records which shall be dealt with later so far as they are relevant in the disposal of this petition.

Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor, on the other hand, submitted that in view of the concurrent finding of facts arrived at by the Trial Court and the Appellate Court, this Court ought not to interfere considering the limited powers in its revisional jurisdiction. In support of his contention, the Additional Public Prosecutor cited the following decisions:

Manju Ram Kalita Vs. State of Assam,

Raj Kumar Vs. State of H.P., and

Hydru v. State of Kerala: (2004 )13 SCC 374.

It was submitted that there were categorical and consistent findings of both the Courts below that the Petitioner had committed the offence of forgery of the questioned document and had used the same for obtaining the loan from UCO Bank. That the Petitioner had resorted to committing further forgery of two more documents, namely, Exhibit 3, being the salary certificate of Sanjeep Rasaily purportedly working in SABCCO and Exhibit 4 being the certificate certifying that the said Sanjeep Rasaily is a permanent employee of SABCCO and that there was no objection of him standing as guarantor for the Petitioner. As per the learned Additional Public Prosecutor those had been forged to justify the salary certificate Exhibit 2 being the principle document that had been forged by him to obtain the loan from the UCO Bank. That Sanjeep Rasaily was a fictitious person created by the Petitioner and that the questioned documents had been seized on their discovery being made consequent to the statement of the Petitioner recorded u/s 27 of the Indian Evidence Act, 1872. That there was no delay in lodging the FIR and the delay pointed out by the Petitioner was not so fatal as to vitiate the entire case of the prosecution.

Before proceeding further in the matter, it has to be borne in mind that this is a revision petition against the finding of the Appellate Court that is under consideration. The position of law that the jurisdiction of this Court is limited under such proceeding is not lost sight of by this Court. It is an extra-ordinary power to be exercised with due regard of the circumstances of each particular case and that it is to be exercised only to rectify any illegality, irregularity, impropriety or mistake appearing on the face of the record. Courts shall certainly step in where there has been injustice caused to the accused but it is not to be exercised in case of every illegal order or error. The circumstances under which a Revisional Court shall exercise its power has been laid down most succinctly in the case of Manju Ram Kalita (supra), relevant portion of which are reproduced below:

So far as Issue 1 is concerned i.e. as to whether the Appellant got married with Smt Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence.

This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.

... The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure.

[Vide Firm Sriniwas Ram Kumar v. Mahabir Prasad (AIR p. 179, para 8), Tulsi Das Khimji v. Workmen and Pentakota Satyanarayana v. Pentakota Seetharatnam.] Where the court below considered the material facts and did not take into consideration any inadmissible evidence, etc. the interference is not required by court on third instance. (Vide Madhavan Nair v. Bhaskar Pillai)

Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count required to be interfered with.

The above being the position of law as regards the jurisdiction of a Revisional Court, we may consider the grounds that have been raised on behalf of the Petitioner which have been set out hereinbefore. On careful consideration of the judgments of the Trial Court and the Appellate Court, it is quite evident that the Petitioner seeks to reappraise the evidence dealt with in detail by both the Courts below and seeks to assail the concurrent finding of the facts that the Petitioner is guilty of the offences charged against him. Perhaps, the only ground worth some consideration is that the Courts below rejected the plea of the Petitioner that the GEQD had failed to arrive at a conclusive opinion as to whether the signature appearing in Exhibit 2 could have been that of the Petitioner, and that the requisition made by GEQD in its report, Exhibit 17, for seeking specimen signature was not acted upon by the prosecution.

Mr. K.T. Bhutia, learned senior counsel, submits that other than the denial of the said complainant, S. B. Rai, PW1, of the signatures on Exhibits 2, 3 and 4, as not being his and that his allegation that the Petitioner had forged them to wrongly obtain a loan from the UCO Bank, Ranipool Branch, there were no other evidence corroborative of or otherwise to arrive at a finding that it was the Petitioner who had committed that offence. It was submitted that it was improper to rely upon the sole testimony of the complainant as he was an interested witness seeking to secure the conviction of the Petitioner being inimically inclined towards him. Mr. Bhutia relied upon the decision of Labhshanker Maganlal Shukla v. State of Gujarat: AIR 1979 SC 1012 in support of the above contention and sought to heavily relied upon the following portion thereof:

...It is noteworthy that apart from the word of Acharya, there is no evidence at all to show that the signatures purporting to be his were not in his handwriting. The services of a handwriting expert were no doubt requisitioned by the prosecution but his testimony is to the effect that no definite opinion can be given about the disputed signatures as to whether they were or were not made by Acharya. The position boils down to this that the court had to make a choice between the stand of Acharya who, as already stated is a witness very much interested in disclaiming the authorship of the said signatures, and that of the Appellant according to whom it was Acharya and nobody else who was the author thereof. In this situation the High Court erred in relying on the word of Acharya and thus giving the benefit of doubt to him rather than to the Appellant who deserved it, the onus of proof being always on the prosecution to establish beyond reasonable doubt all the ingredients of an offence with which a person accused thereof is charged.

It was further submission of Mr. Bhutia that in a case of forgery reference to the expert evidence is vital in the absence of which it would erroneous to hold the person accused of such offence guilty of its commission. In support of his contention, Mr. Bhutia relied upon the case of Kapil Corepacks Pvt. Ltd. and Others Vs. Shri Harbans Lal (since deceased) through Lrs., , relevant portion of which is reproduced below:

...Whether it is a forgery or not will have to be determined with reference to the expert evidence and after the evidence of both Plaintiff and Defendants tested by cross-examination.

It is relevant to state here that although the case was finally heard on 06-04-2011, it was felt necessary to list it for being spoken to in view of certain clarifications that were felt essential as those had not been dealt with by either of the parties during course of their arguments and were vital in arriving at a decision. It was accordingly listed on 26-04-2011 during which time both the prosecution and the Petitioner were heard in detail.

I have given my thoughtful and anxious consideration to the rival contentions of the parties, the materials and the evidence on the record and I am of the view that the Petitioner has failed to make out a case where this Court can exercise its revisional jurisdiction to set aside the finding of the Appellate Court which would have the consequence of altering the finding of the Trial Court upheld by it for the reasons that follow hereinafter.

The plea made on behalf of the Petitioner that the prosecution had failed to establish beyond any reasonable doubt that he had forged the documents Exhibits 2, 3 and 4, in the absence of a conclusive opinion of the GEQD cannot be sustained for the following reasons:

(i) There is a categorical statement made by the complainant, S. B. Rai, PW1, that the signatures appearing on the Exhibits 2, 3 and 4, were not appended by him.

(ii) The Branch Manager, UCO Bank, PW6, has affirmed in no uncertain terms that the Petitioner had obtained the loan by submitting various documents including the documents, Exhibits 2, 3 and 4. As held in the case of Bank of India Vs. Yeturi Maredi Shanker Rao and Another, , cited by the learned Additional Public Prosecutor, from the facts and circumstances appearing in the present case, an inference can safely be drawn that it was the Petitioner who forged the signatures of PW1 on the questioned documents as it was he who obtained the loan from the Bank by using those documents. I may reproduce paragraph 15 of the judgment as the facts of that case are similar to those in the present one:

As regards the offence u/s 467 read with Section 109, the learned High Court acquitted the Respondent because it came to the conclusion that there is no evidence to establish as to who forged the signatures of PW 1 on the withdrawal form. It is no doubt true that so far as the evidence about the forgery of the signatures of PW 1 on the withdrawal form is concerned there is no evidence except the fact that the signatures are forged and the further fact that this withdrawal form was in the possession of Respondent-accused who presented it in the Bank and obtained money therefrom and pocketed the same. From these facts an inference could safely be drawn that it was the Respondent-accused who got signatures of PW 1 forged on this document as it was he who used it to obtain money from the Bank from the account of PW1 and pocketed the same. It is no doubt true that there is no evidence as to who forged the signatures of the withdrawal form but the circumstances indicated above will lead to the only inference that it was the accused-Respondent who got the signatures of PW1 forged on the withdrawal form. In this view of the matter therefore the acquittal of the Respondent for an offence u/s 467 read with Section 109 also could not be justified.

[Underlining supplied]

(iii) In the present case also the fact that the signature of the complainant, S. B. Rai, PW1, had been forged cannot be doubted in view of his categorical statement. But in the absence of a clear evidence that it was the Petitioner who had so forged, the Courts below have taken into consideration other circumstances dehors the GEQD report to arrive at such a finding. As has already been dealt with above, considering that the benefit of those documents had flowed only in favour of the Petitioner, a reasonable inference was drawn by both the Courts below that it was he who had committed the forgeries.

(iv) The above findings are concurrent to both the Trial Court and the Appellate Court and I find no reason to differ with them. Considering the inconclusive nature of the opinion of the GEQD, it was necessary to proceed as though such opinion did not exist and consider other available evidence on the record which the Courts below appear to have done. In any case opinion of an expert is not a substantive piece of evidence but only corroborative and no conviction can be held against an accused person solely based upon such evidence particularly in a case where the opinion is in conflict with the oral evidence.

(v) The plea made on behalf of the Petitioner that the complainant, S. B. Rai, PW1, was an interested witness inimically inclined towards the Petitioner appears to be an afterthought as it does not appear to have been raised during the trial of the case. I also do not find any whisper or a suggestion to that effect in the cross-examination of the prosecution witnesses. Perhaps, the most incriminating circumstances that goes against the Petitioner are the blunt denials of all circumstances appearing against him including those pertaining to the questions as regards the reason as to why the prosecution witnesses had deposed against him as is evident from the following extract of his statements recorded u/s 313 of the Code of Criminal Procedure:

Why have the Prosecution witnesses deposed against you?

I do not know why.

Do you have any witness to bring in your defence?

No, I have no witness to examine in my defence.

Do you have anything to say which you think should be brought before the notice of this Court?

I am innocent.

(vi) Mr. K. T. Bhutia, learned senior counsel for the Petitioner, urged that the questions that were put to the Petitioner u/s 313 Code of Criminal Procedure was not specific as regards the circumstances of Mr. S. B. Rai, PW1, having deposed against him and, therefore, the Petitioner-accused were seriously prejudiced rendering the judgment and sentence of the trial Court illegal and liable to be set aside. Reliance was placed by him in the case of Ajay Singh Vs. State of Maharashtra, and emphasized, amongst others, on the following portion of the judgment:

...The question must be framed in such a way as to enable the accused to know that he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused''s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.

The above legal position is quite well-settled and no doubt is binding upon this Court. However, the application of the principle would depend upon the facts and circumstances of each case. In the case of Ajay Singh (supra) where the above ratio have been reiterated, the Appellant had been charged with the offence of murder of his wife by setting her on fire after pouring kerosene on her body. One of the most vital circumstances appearing against the accused person were the clothes worn by him at the time of the occurrence on which kerosene had been found. Those having come on record as evidence and, therefore, a circumstance against the Appellant, it was essential for the Court to have given him an opportunity to explain. This having not been done, it was found that the judgment convicting the Appellant could not be sustained.

This is clearly not the case in the matter before us. Question Nos. 45, 46 and 47 reproduced above would go to show that the Petitioner had been given ample opportunity to explain the circumstances as to why the prosecution witnesses had deposed against him and as to whether he would like to enter into his defence, apart from giving him an opportunity of stating anything which he thought should be brought to the notice of the Court. All those questions were answered in negative by the Petitioner and no explanations were forthcoming from him least of all that PW1 was inimically inclined towards him as alleged by him. In the very judgment of Ajay Singh (supra) it has been held as follows:

The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.

The Petitioner having failed to discharge the onus of proving that PW1 was indeed hostile to him, the submission that the circumstance having not been put to the Petitioner for being explained by him, the conviction and sentence were liable to be set aside, cannot be sustained.

(vii) On perusal of the record of examination of the accused Petitioner u/s 313 Code of Criminal Procedure, it is found that there are 47 circumstances that were put to him which he has either bluntly denied or replied most evasively. It has been held that such attitude of an accused would supply the missing link in completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed in a case that is based on circumstantial evidence. We may refer to the following portion of the case of Joseph Poulo Vs. State of Kerala, , in a case where there are blunt denials there was failure on the part of the accused person to explain the incriminating circumstances inculpating him.

...During the time of questioning u/s 313 Code of Criminal Procedure. the Appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the Appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, form the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh, ). That missing link to connect the accused-Appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy....

[Underlining supplied]

(viii) What is more intriguing is that the Petitioner has denied even having obtained the loan when the evidence of the Branch Manager, UCO Bank, PW6, clearly establishes to the facts contrary. We may refer to the following portion of the deposition of PW6:

I know the accused person standing in the dock. I am the Manager of the UCO Bank, Ranipool branch. The accused had applied for loan in our bank. As per the formalities firstly he had to approach the Mother Queen Electronics at Ranipool. The loanee, in the present case the accused, has to make an application along with a salary certificate (his) and the undertaking letter of the department wherein he is working. After furnishing the aforesaid documents the concerned bank supplies the bank document including the document for the hypothecation of goods which the accused would be purchasing with the loan money. The loanee also has to produce some documents including that of the guarantor. After verifying all the documents our bank sanctions the loan to the loanee. The same was done in respect of the accused.

......................

...In the instant case, the accused person did not approach me directly. I know the accused only after he obtained loan. I did not know him before he obtained the loan.

(ix) The denial of the Petitioner of having obtained the loan is evident from the following portion of his statement recorded u/s 313 of the Code of Criminal Procedure: -

It is in the evidence of P.W.6, Birendra Kumar Karmakar, that he knows you. As per him, he is the Manager of UCO bank, Ranipool Branch. You had applied for loan in their bank. As per the formalities you had to approach the Mother Queen Electronics at Ranipool first. The loanee, in the present case you, has to make an application along with his salary certificate and undertaking letter of the department where he is working. After furnishing the aforesaid documents the concerned bank supplies the bank document including the document for the hypothecation of goods which you (loanee) would be purchasing with the loan money. The loanee also has to produce some documents including that of the guarantor. After verifying all the documents their bank sanctions the loan to the loanee. The same was done in respect of you. What do you have to say?

It is not a fact.

(x) The cases referred to by Mr. K. T. Bhutia, learned senior counsel, hold good in the facts and circumstances of those cases but unfortunately would not be applicable in the case before us.

(xi) In so far as the question of delay in filing the FIR is concerned, I am of the view that the delay is not so fatal as to vitiate the prosecution case and, therefore, do not find any reasons to differ with the findings on this arrived at by the Courts below. The other grounds urged on behalf of the Petitioner as set out in paragraph 5 above are also not such as to affect the case of the prosecution and are quite peripheral in nature and, therefore, stands rejected as not being sustainable.

Considering the above facts and circumstances, it would be difficult to hold that the learned Courts below have committed any incorrectness, illegality or impropriety in any of the findings contained in the impugned judgment.

At the end it was submitted by Mr. K. T. Bhutia that even if it was found that the convictions could be sustained, the sentence passed against him was quite harsh and disproportionate to the offences. It was further submitted that considering the facts that the Petitioner has a wife and children who are dependant on him, it was necessary for the Courts below to have taken a lenient view. It was pleaded that the sentences be reduced for the ends of justice.

On careful consideration of the facts and circumstances of the case, the prosecution no doubt has technically established the offence charged against the Petitioner. However, on a deeper examination, I find that the offence of forgery was committed to facilitate the Petitioner in obtaining a loan, the liability for the payment of which would have to be borne by him. No pecuniary loss has been sustained by the complainant. The UCO Bank, Ranipool Branch, has not complained of any loss as the amount paid to the Petitioner was in the form of a loan against valuable securities. Under such circumstances, the interest of justice would be served if the sentences are modified as follows:

(i) For the offence u/s 468 IPC - 1 year and fine of Rs. 5,000/- in default of payment of which to undergo further simple imprisonment for a period of 2 months.

(ii) For the offence u/s 420 IPC - 1 year and fine of Rs. 5,000/- in default of payment of which to undergo further simple imprisonment for a period of 2 months.

(iii) The rest of the sentences shall remain unaltered.

(iv) All the sentences shall run concurrently.

Needless to say that the Petitioner shall be entitled to the benefit of set off provided u/s 428 of the Code of Criminal Procedure, 1973.

In the result, the revision is partially allowed and the impugned judgment of the learned Sessions Judge, Special Division - I, hereby stand modified in the manner stated above.

No order as to costs.

The Petitioner is accordingly directed to surrender before the learned Judicial Magistrate, East & North Sikkim at Gangtok within 15 (fifteen) clays of this judgment to serve the sentence.

A copy of the judgment be transmitted to the learned Judicial Magistrate, East & North Sikkim at Gangtok forthwith for compliance.

A copy of the judgment be also sent to the learned Sessions Judge, Special Division - I, Sikkim at Gangtok for information.

Let the trial Court records be returned forthwith.