Susheelamma vs S. Rangaswamy

B.V. Pinto, J.—These two cases arise out of the same judgment and hence both are clubbed together for the purpose of disposal.

Being aggrieved by the judgment dated 02.08.2006 passed by the IXth Addl. C.M.M. at Bangalore, in C.C. No. 20556/2002 acquitting the respondent herein for the offence punishable u/s 199, 420 r/w Section 511 of IPC., the State has filed this appeal which is Crl.A. No. 345/2007.

Being aggrieved by the same judgment, PW1-M. Susheelamma has filed a Revision Petition in Crl.R.P. No. 88/2007. Since both cases arise out of the some judgment both are taken together.

It is the case of the prosecution that the respondent herein was the husband of Smt. Rajeshwari who has died and the respondent/husband of the deceased has made a false declaration in the claim documents which were produced before the LIC of India at K.R. Road, Bangalore for the purpose of claiming the insurance amount. The respondent was alleged to have stated in the claim form given to the LIC of India that his wife Smt. Rajeshwari has died of heart attack and that the said declaration given by the respondent attracts Section 191 of IPC and further by falsely claiming the amounts from the LIC of India, the respondent has attempted to cheat the complainant, thereby an offence u/s 420 of IPC r/w Section 511 IPC has been charged against the respondent.

PW1 - M. Susheelamma who is the petitioner in Crl.R.P. No. 88/2007 filed a complaint before the Police, as per Ex. P1, which is a type-written complaint running into four pages alleging that the respondent herein had murdered his wife by name Smt. Rajeshwari who is the daughter of the petitioner in the Revision Petition. That in the said case the respondent has been charged for having committed the murder of the deceased wife. In the said case the reason for the death of the deceased was "Shock and Hemorrhage as a result of injuries sustained". Whereas, he has filed claim petition before the LIC, claiming the amount due from the LIC and in Column No. 2 of the said claim form, which is marked as Ex. P2, it states that immediate cause of the said death was "heart attack". On the basis of the said complaint the S.H.O. of Upparpet Police Station registered the case on 27.02.2001 in crime No. 1031/2001 for offence punishable u/s 171, 182, 193, 199 and 420 of IPC. The police after investigation filed a charge sheet alleging that the respondent had committed offence u/s 199 and 420 r/w 511 of IPC. After the respondent was secured before the Court, the prosecution in order to prove the case against the respondent examined in all 5 witnesses i.e. PWs.1 to 5 and got marked as Exs.P1 to P25. After recording the statement of the respondent u/s 313 of Cr.P.C. the learned Magistrate was pleased to record an order of acquittal. It is this order of acquittal, which is under challenge in these two cases.

Heard Smt. A.R. Sharadambha, learned Additional Government Advocate appearing for the appellant in Crl.A. No. 345/2007 and Sri. Nitin Rajesh, learned Counsel for the petitioner in Crl.R.P. No. 88/2007 and Sri. C.V. Nagesh, learned Senior Counsel for the respondent. Perused the documents on record carefully.

The two points on which the learned Magistrate has acquitted the respondent is:

A) Legal- non maintainability of complaint before police

B) Factual- on merits of the case

The legal point which has been taken up by the learned Magistrate is:

1) No case would have been taken cognizance against the respondent for offence u/s 199 of IPC, since there is a bar for taking cognizance of the said offence u/s 195 of Cr. P.C., Section 195(1)(b)(i) of Cr.P.C. states as follows:

No Court shall take cognizance - Of any offence punishable under any of the following Sections of Indian Penal Code (45 of 1860), namely, Sections 193 - 196 (both inclusive), 199, 200, 205 - 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court.

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[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].

Section 199 of IPC reads as follows:

Whoever, in any declaration made or subscribed by him, which declaration, any court of justice, or any public servant or other person, bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

From the very reading of this Section 199, the offence that is alleged to have been committed is punishable in the same manner as if the person gives false evidence. Giving false evidence is defined u/s 191 of IPC which reads as follows:

Whoever, being legally bound by an oath, or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Offence u/s 191 of IPC is punishable u/s 193 of IPC which reads as follows.

Whoever intentionally gives false evidence in any stage of a judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceedings shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

The reading of Section 195 of Cr.P.C. makes it very clear that any offence committed u/s 193 - 196, 199 etc., alleged to have been committed in any proceedings in any Court cannot be taken cognizance by any Court except on the complaint filed by that Court or other Courts to which that Court is subordinate.

I am of the opinion that Section 195 is not attracted in this case since the document is not produced in ''Court'' or ''in any proceedings in the Court'' and therefore, the observation of the learned Magistrate in so far as this aspect is concerned is erroneous. The complaint filed by the complainant in Criminal Revision Petition is not bared by Section 195 of Cr.P.C., because this complaint is not made in respect of any proceedings in the Court. Therefore, filing of charge sheet upon investigation of the complaint given by P.W. 1 to police is proper and cannot be found fault with.

Now, in so far as the offences alleged to have been committed by the respondent is concerned, we have to see the evidence of prosecution witnesses as well as the documents produced in this case. PW1 -Susheelamma is the complainant before the police. She has stated as per the contents of the complaint given by her to the police as per Ex. P1. She has been thoroughly cross-examined by the Counsel for the respondent. PW2 - Rajanna. S is the officer who has stated that he has attested the signature of the respondent in Ex. P2 and he has singed at Ex. P2(a). PW 3 - B.K. Umesh who is the Police Inspector of Upparpet Police Station during the relevant period has conducted part of investigation in this case. PW4 - K. Nanjundegowda is also a police officer who has received certain documents during investigation and handed over his further investigation to his successor. PW 5 - Chitamani is the Deputy Manager of Bangalore Division of LIC. It is in his evidence that he has forwarded certain documents i.e., Xerox copies of policy of Smt. Rajeshwari to the police station and also the death intimation letter, the claim Form-A which are marked in the case. The said witness was recalled again on 11.09.2006 and the five original office copies of LIC of Smt. Rajeshwari which were produced were marked through him as per Ex. P18 to P22. Similarly, the original death certificate is marked as Ex. P24 and original Claim Form-A is marked as Ex. P25. It is seen that by order dated 11.09.2006, the learned Magistrate was pleased to keep the original documents in safe custody and hence, the original documents are not before the Court. However, Ex. P2 is the Xerox copy of Ex. P25, which is the subject matter of the dispute in this case.

Now, coming to the evidence regarding offence u/s 199 is concerned, having stated that it is not a bar to entertain the complaint by the police and filing of charge sheet against the respondent, we have to see as to whether the offence has been made out from the materials available on record.

Sri. Nithin Kumar submitted that, so far as the document Ex. P25 is concerned, it is seen from Ex. P2 that it is attested by PW2. PW2 is the colleague of the respondent and therefore, it is his contention that being the colleague PW2 is deemed to be knowing the signature of the respondent and since, PW2 has attested Ex. P2 the claim form saying that the signature found in Ex. P2 is that of the respondent and further coming to the witness box and saying that he has attested the signature of the accused who was before the Court, the primary responsibility of the complainant to show that the respondent and respondent himself has signed the claim form has been discharged and it is proved beyond reasonable doubt that Ex. P2 was signed by the respondent.

Secondly, he has submitted that the respondent himself was an accused in the Sessions case and in the said Sessions case Ex. P17 - postmortem report was produced. Ex. P17 marked in this case indicates that the cause of death of Smt. Rajeshwari was "Shock and Hemorrhage as a result of injury sustained". It is his contention that, since this Ex. P17 was the document produced along with the charge sheet and the respondent has faced trial in the said case, the respondent is deemed to be aware of the cause of death of his wife. Whereas, Ex. P2 submitted before the LIC authorities for claiming the amount states that the reason given in column No. 2 by the respondent is "heart attack". Therefore, this circumstances also goes in favour of the petitioner against the respondent that this respondent has given a false statement before the LIC authorities.

Thirdly, he submits that PW5, the LIC officer has identified a letter - Ex. P13 written by one S. Rangaswamy addressed to the Senior Divisional Manager and this letter indicates that it was Sri. Rangaswamy, who has approached the LIC for claiming the amount due in respect of all the policies mentioned in Ex. P13. S. Rangaswamy is none other than the respondent. He also further invited my attention to Section 47 of Evidence Act, which reads as follows:

When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation: A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

He submits that since the respondent and PW2 were working together in the same office, they were acquainted with the signature of the respondent and therefore, on this account also the prosecution has proved the case against the respondent beyond the reasonable doubt and he submits that the respondent is liable to be convicted for the offence u/s 199 of IPC.

In so far as, Section 420 is concerned though in the charge sheet it is mentioned as 420 r/w Section 511 when the Trial Court has framed the charge, Section 511 has been omitted and the charge has been framed only for the offence u/s 199 and 420 of IPC.

However, it is brought in the evidence that the amount has not been disbursed so far. Therefore, the money, which is due under the policies, has not been disbursed so far, nor respondent has received it. Therefore, the offence comes down only to an attempt and the offence has not been committed. Therefore, it is the contention of the learned Counsel for the petitioner in Crl.R.P. No. 88/2007 that the respondent has attempted to cheat the complainant. Therefore, he is liable to be convicted for the said offence also.

On the other hand, Sri. C.V. Nagesh, the learned Senior Counsel submitted that it is in the evidence of PW2 that the respondent has not signed either in his presence or at his request, nor Ex. P2 contains any averments that the said form was signed in the presence of PW2. Even on a bare looking of Ex. P2 it does not indicate that the same was singed by the respondent in the presence of PW2 or before any other persons. He further submits that to make an offence u/s 199 of IPC the "declaration must have been made or subscribed by him and further that such false declaration should be known to the respondents/accused to be false or that he believes to be false or he does not believe to be true".

Secondly, he submits that no witness comes forward to say in this case as to who has seen the respondent signing the claim form of Ex. P2/P.25 or no one else have attested the signature in Ex. P2/P.25 as that of the respondent.

Thirdly, he further submits that it has not been proved as to who has brought the claim form Ex. P2 to the office of LIC. The manner in which Ex. P2/25 reached LIC office is unknown, whether it is personally handed over by the respondent or by post or by any other means of communication. He also further submits that, on the side of the LIC also there is no witnesses to say that particular person has received the form in the LIC office and further, apart from the seal of claims department, there is no evidence from the said office to say that the said document is received by the LIC for the purpose of claim. On the ether hand PW5 says in the cross-examination that he has seen the accused person in the Court for the first time and that he has not seen the accused at any point of time. Therefore, based on this evidence of the prosecution itself be states that the prosecution has not proved beyond the reasonable doubt that the respondent and respondent alone had come and has claimed the amount from the LIC and that the respondent himself has submitted or signed the claim form i.e. Ex. P2. It is also pointed out by him that the evidence of PW5 at page 5 is to the effect that one Raju was present in the Court on that day. He further says that, he had a chance to see the said Raju on the last occasion also and it is his submission that it must be the said Raju who must have been present and made mischief in this case. PW1 has stated in her evidence that Raju is her second son-in-law and that she has given Power of Attorney in his favour for the purpose of making L.I.C claim. She also states that the son-in-law i.e. Raju has filed a case in O.S. No. 2484/1998 and further, she says that she has not asked him to file complaint against the accused. However, it is elicited from the evidence that she does not know the contents of Ex. P1 and she says that he has written the complaint in his own handwriting. Whereas, the complaint before the Court is a typed complaint running into four pages. From these submission the learned Counsel for the accused/respondent tries to make out the case that there might be some concoction in this case trying to implicate the respondent and that the prosecution has not proved the offence against him beyond reasonable doubt. Therefore, he submits that the order of the learned Magistrate is sound and proper.

After having carefully gone through the submission made by the either side, I am of the opinion that having regard to the facts of the case, that the prosecution has not examined any person to show that the respondent and respondent himself has singed the claim form i.e. Ex. P2 and having regard to the fact that nobody speaks about the fact of the said claim form being received in the office of the LIC. Also having regard to the facts that PW2 in his evidence does not state that, he is the person acquainted with the signature of the respondent and also fact that he does not work with the respondent in the ordinary course of business and that he had any chance of taking the signature of the respondent or acquainted with the signature of the respondent in the ordinary course of their employment I am of the opinion that the prosecution has not proved the offence beyond reasonable doubt and under these circumstances, I am of the opinion that, the order of the learned Magistrate does not call for any interference as the same is not capricious nor it is against the evidence on record of the case, nor against the probabilities of the case.

Therefore, this Court cannot interfere with the order of the acquittal passed by the learned Magistrate. Hence, both the Criminal Revision petition and the Criminal Appeal are dismissed.