Ramkesh Patel Vs. the State of M.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1049506
CourtMadhya Pradesh High Court
Decided OnMay-07-2013
AppellantRamkesh Patel
RespondentThe State of M.P.
Excerpt:
high court of madhya pradesh jabalpur criminal revision no.260/2001 ram kesh patel vs. state of madhya pradesh ----------------------------------------------------------------------------------------------------- present : hon'ble shri justice n.k. gupta. ----------------------------------------------------------------------------------------------------- name of counsel for the parties: shri satish chaturvedi, counsel for the applicant. shri g.s. thakur, panel lawyer for the respondent/state. ----------------------------------------------------------------------------------------------------- order (passed on 7th day of may, 2013) the applicant was convicted for the offences punishable under sections 467 & 468 of ipc vide judgment dated 9.1.2001 passed by the learned judicial magistrate first class (shri deepesh tiwari), beohari in criminal case no.259/90 and sentenced for two years r.i. with fine of `500/- and one year imprisonment with fine of `400/-. in criminal appeal no.15/01, the learned additional sessions judge beohari, district shahdol vide judgment dated 8.3.2001 dismissed the appeal. being aggrieved with the aforesaid judgments, the applicant has preferred the present revision.2. the prosecution's case, in short is that, shri vishnu 2 criminal revision no.260/2001 kumar wadhwani branch manager of the state bank of india, branch budhar had sent a written report ex.p/4 that on 7.4.1989 the applicant had produced a draft no.464707, which was issued by siyaganj branch, indore for a sum of `17/- but on that draft by forgery a sum of `17,000/- was mentioned and therefore, the applicant produced a forged draft for its encashment of `17,000/- hence, it was an offence of cheating with the bank. consequently, a case was registered at police station, beohari for the offence punishable under section 420 of ipc. after due investigation, a charge sheet was filed against the applicant.3. the applicant abjured his guilt. he took a plea that he did not give the draft for its encashment, whereas he was asking to the branch manager whether the draft was correct or not. actually, one baijnath tiwari took a sum of `20,000/- from the applicant on credit and in place of giving the cash payment, he gave that draft, which was shown by the applicant to the branch manager. in defence, ramashankar patel (dw-1) was examined.4. the learned j.m.f.c. beohari after considering the evidence adduced by both the parties, convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto.5. i have heard the learned counsel for the parties.6. learned counsel for the applicant has submitted that it was not the applicant who made any interpolation in the draft. no 3 criminal revision no.260/2001 handwriting expert was examined by the prosecution to show that the forgery was done by the applicant in the draft and therefore, no offences punishable under section 467 or 468 of ipc is made out against the applicant. actually, the applicant produced the draft to the bank authorities to show that whether it is correct or not and they had sent it for the investigation alongwith the fir. the learned counsel for the applicant has further submitted that an expert was to be examined in the case. the reliance is placed upon the various judgments passed by the hon'ble apex court on that count in the cases of “kanchan singh dholak singh thakur vs. state of gujarat”. [(1979) 4 scc 599]. and “chatt ram vs. state of haryana”. [(1980) 1 scc 460].. similarly, the learned counsel for the applicant has further placed his reliance upon the judgment passed by the hon'ble apex court in the case of “dr. vimla vs. state of delhi administration”. [air 196.sc 1572]. to show that whether it was forged or not. similarly, it is also submitted that the evidence could not be accepted for corroboration in absence of the report of handwriting expert. the reliance is placed upon the order passed by the single bench of this court in the case of “nabikhan vs. state of m.p.”. [m.p.w.n. 1993(1) 106]. therefore, it is prayed that the applicant may be acquitted. in the alternate, it is submitted that the applicant was an employee of the forest department, who was himself the victim of cheating done by baijnath tiwari and 4 criminal revision no.260/2001 therefore, looking to his custody period and the period of harassment, in which he faced the trial, appeal and the present revision, he may not be sent to the jail again.7. on the other hand, the learned panel lawyer has submitted that the concurrent findings of both the courts below should not be disturbed without any sufficient reason.8. after considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that there is a concurrent finding of both the courts below relating to the conviction, which should not be disturbed ordinarily. according to the witnesses vishnu kumar (pw-4), ramsakha dwivedi (pw-1) and balam singh (pw-2), the draft ex.p/1 was produced for its payment in the branch of the state bank of india, beohari and it was found that in the column of amount of the draft, a sum of `17,000/- was mentioned, whereas the draft was issued for the sum of `17/- only and therefore, shri vishnu kumar (pw-4) had lodged an fir ex.p/4 to the police. the applicant took a defence that he was simply showing that draft to the branch manager to ascertain as to whether it was correct or not. looking to the statements of balam singh (pw-2) and ramsakha (pw-1), who were dealing with the cash counter at that time. it is apparent that the applicant placed the draft for its encashment and he wanted the payment of draft to be deposited in his account. ramsakha dwivedi (pw-1) was a cashier at that time 5 criminal revision no.260/2001 and after getting the draft, he went to the branch manager shri vishnu kumar (pw-4). under such circumstances, it cannot be said that the applicant was showing the draft to the bank employee to examine its correctness. on the contrary, he had given the draft to the bank authority for its encashment.9. the applicant took a second defence that he had given a sum of `20,000/- to one baijnath tiwari on credit and baijnath tiwari had returned a sum `17,000/- by that bank draft. in defence, some portion of the document ex.d/1 was produced and one ramshankar patel (dw-1) was examined. ramshankar has stated that the applicant and ramshankar were the employees of the forest department. however, they did not state about their posts. he has stated that one baijnath was their neighbour at khandwa, who was working as a transporter and the applicant gave a sum of `20,000/- to baijnath tiwari and thereafter, an acknowledgment was taken on a plain paper, which was produced as ex.d/1. after sometime, baijnath gave a sum of `3,000/- in cash and a draft of `17,000/- to the applicant. the testimony of the witness ramashankar (dw-1) is highly doubtful. he could not state that he himself or the applicant were posted in the forest department. no document is shown to show that the applicant was an employee in the forest department. the statement given by ramashankar patel appears to be unnatural. a huge amount cannot be given to an unknown person in such a manner. a small employee of the forest 6 criminal revision no.260/2001 department cannot provide such a huge sum to anyone.10. if baijanth tiwari gave a draft of `17/- in place of `17,000/- then, it was for the applicant to initiate a proceeding of cheating against that baijnath tiwari and a copy of the fir etc. could be filed before the trial court but no such documents are produced before the trial court and therefore, it appears that the story of baijnath is created only to defend the applicant and therefore, the trial court has rightly disbelieved the story of ramashankar patel.11. however, it was for the prosecution to prove that the applicant was the person, who committed a forgery. it is nowhere established that the alleged draft was sent to the handwriting expert for its examination to ascertain as to whether any forgery was done by the applicant or not. the applicant must have had complete knowledge because any prudent person could locate the forgery in the draft ex.p/1 upon simple reading of the draft as the portion where amount is written in words of the draft it was mentioned to be “` seventy/-”. only, whereas in the figure “rs.x17”./- was mentioned and below the figure, the figure of “rs.17,000/-”. was mentioned in a different ink and there was no counter signature of the officer, who issued the alleged draft. under such circumstances, it was not possible for the applicant to mention such a figure in the draft. the applicant could do the forgery by himself, if he got the draft prepared by himself or with 7 criminal revision no.260/2001 the help of his friend. the concerned investigation officer did not inquire from the siyaganj branch of the state bank of india, who issued the alleged draft that who got the draft issued. also the investigation officer did not inquire from that person who got the draft issued. a possibility cannot be ruled out that the alleged baijnath tiwari had obtained the draft from the siyaganj branch of the state bank of india and gave it to the applicant or someone else for its payment. if the applicant was interested in doing the forgery then, he could not have received the draft, which was required to be deposited in his account. in such a case, he should have prepared a draft so that at any span of time, its payment could be received in cash. it was found that the draft was forged by manipulation in figures and the applicant could not be held liable for that manipulation therefore, it cannot be said that the applicant was the person, who forged the draft.12. it was the duty of the prosecution to prove that who forged the draft either it could be proved by the handwriting expert or it could be proved by the branch of the bank, who issued the draft but the concerned investigation officer did not collect any evidence to show that the applicant was the person, who forged the alleged draft. in the judgment passed by the hon'ble apex court in the case of dr. vimla (supra), the term forgery is discussed at length and what amounts to be forgery and who can be convicted for forgery. in the light of the aforesaid judgment, if 8 criminal revision no.260/2001 the prosecution evidence adduced in the present case is visualized then, it cannot be said that on that draft ex.p/1, the figure “rs.17,000/-”. was written by the applicant and therefore, it cannot be said beyond doubt that the applicant was the person, who committed a forgery in the case. the applicant could not be convicted either for the offences punishable under section 467 or 468 of ipc. initially, a case was registered for the offence punishable under section 420 of ipc but the learned j.m.f.c. did not frame the charge of the offence punishable under section 420 of ipc. at present, the applicant has faced the trial, appeal and the revision for the last 22-23 years and therefore, it would be improper to send the matter back to the trial court for its re-trial, whereas it would be a hardship to the applicant if case is remanded.13. after considering the evidence adduced by the prosecution, it is proved that the applicant placed a forged draft for its encashment, though he knew that it was a forged document otherwise, he could not have taken a defence that he was inquiring about the correctness of the draft and therefore, he has committed an offence punishable under section 471 of ipc. the offence punishable under section 471 of ipc is an inferior offence of similar nature to the offence punishable under section 467 of ipc and therefore, there is no need to frame a separate charge of the offence punishable under section 471 of ipc. the applicant could 9 criminal revision no.260/2001 be convicted for the offence punishable under section 471 of ipc under the charge of the offence punishable under section 467 of ipc. hence, it is a fit case in which the conviction of the applicant may be reduced to the offence punishable under section 471 of ipc.14. so far as the sentence is concerned, it is apparent that the applicant has faced the trial, appeal and the present revision for last 22-23 years approximately. he remained in the custody for approximately nine days during the pendency of this revision. it is also apparent that the applicant is not so much a literate person and he might have been cheated by someone. under such circumstances, it is not a case of any habitual criminal, who has committed such an offence of forgery. consequently, it would be proper that the applicant may not be sent to the jail again. however, fine imposed upon the applicant may be enhanced.15. on the basis of aforesaid discussion, the revision filed by the applicant is hereby partly allowed. the conviction as well as sentence directed for the offences punishable under sections 467 and 468 of ipc are hereby set aside. the applicant is acquitted from the charges of the offences punishable under sections 467 and 468 of ipc but he is convicted for the offence punishable under section 471 of ipc under the same head of charge. he is sentenced for the period in which he remained in the custody during the pendency of the trial, appeal and the revision with imposing a fine 10 criminal revision no.260/2001 of `5,000/-. the applicant is directed to deposit the remaining fine amount before the trial court within two months' from today, failing which he shall undergo for one year's r.i. in addition.16. at present, the applicant is on bail. his presence is no more required before this court and therefore, it is directed that his bail bonds shall stand discharged when he deposits the remaining fine amount.17. a copy of this order be sent to the trial court and the appellate court alongwith their records for information and compliance. (n.k. gupta) judge 07 05.2013 pnkj
Judgment:

HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Revision No.260/2001 Ram Kesh Patel Vs. State of Madhya Pradesh ----------------------------------------------------------------------------------------------------- Present : Hon'ble Shri Justice N.K. Gupta. ----------------------------------------------------------------------------------------------------- Name of counsel for the parties: Shri Satish Chaturvedi, counsel for the applicant. Shri G.S. Thakur, Panel Lawyer for the respondent/State. ----------------------------------------------------------------------------------------------------- ORDER

(Passed on 7th day of May, 2013) The applicant was convicted for the offences punishable under Sections 467 & 468 of IPC vide judgment dated 9.1.2001 passed by the learned Judicial Magistrate First Class (Shri Deepesh Tiwari), Beohari in criminal case no.259/90 and sentenced for two years R.I. with fine of `500/- and one year imprisonment with fine of `400/-. In criminal appeal no.15/01, the learned Additional Sessions Judge Beohari, District Shahdol vide judgment dated 8.3.2001 dismissed the appeal. Being aggrieved with the aforesaid judgments, the applicant has preferred the present revision.

2. The prosecution's case, in short is that, Shri Vishnu 2 Criminal Revision No.260/2001 Kumar Wadhwani Branch Manager of the State Bank of India, Branch Budhar had sent a written report Ex.P/4 that on 7.4.1989 the applicant had produced a draft no.464707, which was issued by Siyaganj Branch, Indore for a sum of `17/- but on that draft by forgery a sum of `17,000/- was mentioned and therefore, the applicant produced a forged draft for its encashment of `17,000/- hence, it was an offence of cheating with the bank. Consequently, a case was registered at Police Station, Beohari for the offence punishable under Section 420 of IPC. After due investigation, a charge sheet was filed against the applicant.

3. The applicant abjured his guilt. He took a plea that he did not give the draft for its encashment, whereas he was asking to the Branch Manager whether the draft was correct or not. Actually, one Baijnath Tiwari took a sum of `20,000/- from the applicant on credit and in place of giving the cash payment, he gave that draft, which was shown by the applicant to the Branch Manager. In defence, Ramashankar Patel (DW-1) was examined.

4. The learned J.M.F.C. Beohari after considering the evidence adduced by both the parties, convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto.

5. I have heard the learned counsel for the parties.

6. Learned counsel for the applicant has submitted that it was not the applicant who made any interpolation in the draft. No 3 Criminal Revision No.260/2001 handwriting expert was examined by the prosecution to show that the forgery was done by the applicant in the draft and therefore, no offences punishable under Section 467 or 468 of IPC is made out against the applicant. Actually, the applicant produced the draft to the Bank Authorities to show that whether it is correct or not and they had sent it for the investigation alongwith the FIR. The learned counsel for the applicant has further submitted that an expert was to be examined in the case. The reliance is placed upon the various judgments passed by the Hon'ble Apex Court on that count in the cases of “Kanchan Singh Dholak Singh Thakur Vs. State of Gujarat”. [(1979) 4 SCC 599]. and “Chatt Ram Vs. State of Haryana”. [(1980) 1 SCC 460].. Similarly, the learned counsel for the applicant has further placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of “Dr. Vimla Vs. State of Delhi Administration”. [AIR 196.SC 1572]. to show that whether it was forged or not. Similarly, it is also submitted that the evidence could not be accepted for corroboration in absence of the report of handwriting expert. The reliance is placed upon the order passed by the Single Bench of this Court in the case of “Nabikhan Vs. State of M.P.”

. [M.P.W.N. 1993(1) 106]. therefore, it is prayed that the applicant may be acquitted. In the alternate, it is submitted that the applicant was an employee of the forest department, who was himself the victim of cheating done by Baijnath Tiwari and 4 Criminal Revision No.260/2001 therefore, looking to his custody period and the period of harassment, in which he faced the trial, appeal and the present revision, he may not be sent to the jail again.

7. On the other hand, the learned Panel Lawyer has submitted that the concurrent findings of both the Courts below should not be disturbed without any sufficient reason.

8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that there is a concurrent finding of both the Courts below relating to the conviction, which should not be disturbed ordinarily. According to the witnesses Vishnu Kumar (PW-4), Ramsakha Dwivedi (PW-1) and Balam Singh (PW-2), the draft Ex.P/1 was produced for its payment in the Branch of the State Bank of India, Beohari and it was found that in the column of amount of the draft, a sum of `17,000/- was mentioned, whereas the draft was issued for the sum of `17/- only and therefore, Shri Vishnu Kumar (PW-4) had lodged an FIR Ex.P/4 to the police. The applicant took a defence that he was simply showing that draft to the Branch Manager to ascertain as to whether it was correct or not. Looking to the statements of Balam Singh (PW-2) and Ramsakha (PW-1), who were dealing with the cash counter at that time. It is apparent that the applicant placed the draft for its encashment and he wanted the payment of draft to be deposited in his account. Ramsakha Dwivedi (PW-1) was a cashier at that time 5 Criminal Revision No.260/2001 and after getting the draft, he went to the Branch Manager Shri Vishnu Kumar (PW-4). Under such circumstances, it cannot be said that the applicant was showing the draft to the bank employee to examine its correctness. On the contrary, he had given the draft to the Bank Authority for its encashment.

9. The applicant took a second defence that he had given a sum of `20,000/- to one Baijnath Tiwari on credit and Baijnath Tiwari had returned a sum `17,000/- by that bank draft. In defence, some portion of the document Ex.D/1 was produced and one Ramshankar Patel (DW-1) was examined. Ramshankar has stated that the applicant and Ramshankar were the employees of the Forest Department. However, they did not state about their posts. He has stated that one Baijnath was their neighbour at Khandwa, who was working as a transporter and the applicant gave a sum of `20,000/- to Baijnath Tiwari and thereafter, an acknowledgment was taken on a plain paper, which was produced as Ex.D/1. After sometime, Baijnath gave a sum of `3,000/- in cash and a draft of `17,000/- to the applicant. The testimony of the witness Ramashankar (DW-1) is highly doubtful. He could not state that he himself or the applicant were posted in the Forest Department. No document is shown to show that the applicant was an employee in the Forest Department. The statement given by Ramashankar Patel appears to be unnatural. A huge amount cannot be given to an unknown person in such a manner. A small employee of the Forest 6 Criminal Revision No.260/2001 Department cannot provide such a huge sum to anyone.

10. If Baijanth Tiwari gave a draft of `17/- in place of `17,000/- then, it was for the applicant to initiate a proceeding of cheating against that Baijnath Tiwari and a copy of the FIR etc. could be filed before the trial Court but no such documents are produced before the trial Court and therefore, it appears that the story of Baijnath is created only to defend the applicant and therefore, the trial Court has rightly disbelieved the story of Ramashankar Patel.

11. However, it was for the prosecution to prove that the applicant was the person, who committed a forgery. It is nowhere established that the alleged draft was sent to the handwriting expert for its examination to ascertain as to whether any forgery was done by the applicant or not. The applicant must have had complete knowledge because any prudent person could locate the forgery in the draft Ex.P/1 upon simple reading of the draft as the portion where amount is written in words of the draft it was mentioned to be “` Seventy/-”. only, whereas in the figure “Rs.x17”./- was mentioned and below the figure, the figure of “Rs.17,000/-”. was mentioned in a different ink and there was no counter signature of the officer, who issued the alleged draft. Under such circumstances, it was not possible for the applicant to mention such a figure in the draft. The applicant could do the forgery by himself, if he got the draft prepared by himself or with 7 Criminal Revision No.260/2001 the help of his friend. The concerned Investigation Officer did not inquire from the Siyaganj Branch of the State Bank of India, who issued the alleged draft that who got the draft issued. Also the Investigation Officer did not inquire from that person who got the draft issued. A possibility cannot be ruled out that the alleged Baijnath Tiwari had obtained the draft from the Siyaganj Branch of the State Bank of India and gave it to the applicant or someone else for its payment. If the applicant was interested in doing the forgery then, he could not have received the draft, which was required to be deposited in his account. In such a case, he should have prepared a draft so that at any span of time, its payment could be received in cash. It was found that the draft was forged by manipulation in figures and the applicant could not be held liable for that manipulation therefore, it cannot be said that the applicant was the person, who forged the draft.

12. It was the duty of the prosecution to prove that who forged the draft either it could be proved by the handwriting expert or it could be proved by the Branch of the bank, who issued the draft but the concerned Investigation Officer did not collect any evidence to show that the applicant was the person, who forged the alleged draft. In the judgment passed by the Hon'ble Apex Court in the case of Dr. Vimla (supra), the term forgery is discussed at length and what amounts to be forgery and who can be convicted for forgery. In the light of the aforesaid judgment, if 8 Criminal Revision No.260/2001 the prosecution evidence adduced in the present case is visualized then, it cannot be said that on that draft Ex.P/1, the figure “Rs.17,000/-”. was written by the applicant and therefore, it cannot be said beyond doubt that the applicant was the person, who committed a forgery in the case. The applicant could not be convicted either for the offences punishable under Section 467 or 468 of IPC. Initially, a case was registered for the offence punishable under Section 420 of IPC but the learned J.M.F.C. did not frame the charge of the offence punishable under Section 420 of IPC. At present, the applicant has faced the trial, appeal and the revision for the last 22-23 years and therefore, it would be improper to send the matter back to the trial Court for its re-trial, whereas it would be a hardship to the applicant if case is remanded.

13. After considering the evidence adduced by the prosecution, it is proved that the applicant placed a forged draft for its encashment, though he knew that it was a forged document otherwise, he could not have taken a defence that he was inquiring about the correctness of the draft and therefore, he has committed an offence punishable under Section 471 of IPC. The offence punishable under Section 471 of IPC is an inferior offence of similar nature to the offence punishable under Section 467 of IPC and therefore, there is no need to frame a separate charge of the offence punishable under Section 471 of IPC. The applicant could 9 Criminal Revision No.260/2001 be convicted for the offence punishable under Section 471 of IPC under the charge of the offence punishable under Section 467 of IPC. Hence, it is a fit case in which the conviction of the applicant may be reduced to the offence punishable under Section 471 of IPC.

14. So far as the sentence is concerned, it is apparent that the applicant has faced the trial, appeal and the present revision for last 22-23 years approximately. He remained in the custody for approximately nine days during the pendency of this revision. It is also apparent that the applicant is not so much a literate person and he might have been cheated by someone. Under such circumstances, it is not a case of any habitual criminal, who has committed such an offence of forgery. Consequently, it would be proper that the applicant may not be sent to the jail again. However, fine imposed upon the applicant may be enhanced.

15. On the basis of aforesaid discussion, the revision filed by the applicant is hereby partly allowed. The conviction as well as sentence directed for the offences punishable under Sections 467 and 468 of IPC are hereby set aside. The applicant is acquitted from the charges of the offences punishable under Sections 467 and 468 of IPC but he is convicted for the offence punishable under Section 471 of IPC under the same head of charge. He is sentenced for the period in which he remained in the custody during the pendency of the trial, appeal and the revision with imposing a fine 10 Criminal Revision No.260/2001 of `5,000/-. The applicant is directed to deposit the remaining fine amount before the trial Court within two months' from today, failing which he shall undergo for one year's R.I. in addition.

16. At present, the applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged when he deposits the remaining fine amount.

17. A copy of this order be sent to the trial Court and the appellate Court alongwith their records for information and compliance. (N.K. GUPTA) JUDGE 07 05.2013 pnkj