At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE M. . GIRATKAR
For the Applicant: R.M. Daga, Advocate. For the Respondent: H.R. Dhumale, Additional Public Prosecutor.
1. The present revision is preferred against the judgment of conviction by the Chief Judicial Magistrate, Wardha for the offences punishable under Sections 468, 471 and 420 of the Indian Penal Code. The judgment of conviction was challenged before the Sessions Judge, Wardha in Criminal Appeal No.76 of 2012. The first appellate Court dismissed the appeal and confirmed the judgment of conviction.
2. The case of the prosecution in short against the applicant (herein after called as the accused) is that the accused was appointed as a muster clerk on 14-03-1975 and thereafter on 14-03-1980, he was absorbed on the regular establishment. It is alleged that the accused had produced SSC Examination Certificate for the purpose of regularization in Class
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-III cadre. However, he had not passed SSC examination.
3. It is the case of the prosecution that the accused forged the document i.e. SSC passed certificate and submitted it to the authority for regularization of his service in Class-III cadre. The superior officer of the accused received some complaint. The letter was issued to the concerned School. The concerned School informed that the said SSC certificate was not issued by their authority. Hence, Anil Namdeo Bahadure who was working in the Irrigation Department lodged the report. On the report of the complainant, crime was registered against the accused for the offences punishable under Sections 468, 471 and 420 of the Indian Penal Code. The learned trial Court convicted the accused and the said judgment of conviction came to be confirmed by the first appellate Court.
4. Heard learned Counsel Shri R. M. Daga for the applicant. He has pointed out the evidence of PW2 Anil Bahadure and submitted that there was no necessity for the accused to produce certificate because he had already completed 45 years of his age and as per the Government Resolution, the persons who have completed 45 years of age is exempted from passing Hindi and Marathi language examination.
5. Learned Counsel Shri Daga pointed out Sections 468 and 471 of the Indian Penal Code and submitted that material ingredients of Section 463 of the I.P.C. are not proved. Therefore, the accused cannot be convicted for the offence punishable under Section 468 of the Indian Penal Code. Atlast, he has submitted that the applicant is a retired person aged about 70 years. The prosecution failed to prove material ingredients of the offence charged against him. He is therefore entitled for acquittal.
6. Heard learned Additional Public Prosecutor Shri S. D. Sirpurkar for respondent State. He has strongly supported the impugned judgment. The applicant has produced false SCC Certificate before the authority and therefore, he is rightly convicted by the trial Court.
7. Perused the evidence of PW2 Anil Bahadure. He has stated that as per the Government Resolution Hindi and Marathi language examination was to be passed for the purpose of receiving annual increment. The accused was directed to submit marksheet to show passing of Hindi and Marathi language. The accused did not produce the same though he was asked for several time. Thereafter, the accused produced one certificate. This particular evidence is not reliable because in the cross-examination he has admitted that the accused was already retired when the report was lodged. The accused had completed his 58 years of age and retired honourably. He has further admitted that there was a Government Resolution received by their Office. As per the Government Resolution, the field workers who have completed 45 years of age need not to produce certificate to show passing of Hindi and Marathi language examination. 8. The admission of PW1 in cross-examination show that the field workers/employees who have completed 45 years of age need not to produce certificate of passing Hindi and Marathi language examination. Therefore, there was no question of the accused to produce any certificate because he had already completed 45 years of his age. There is no dispute that the report was lodged after the retirement of the accused.
9. Whether the prosecution has proved that the accused committed forgery as defined under Section 463 of the Indian Penal Code? Section 463 of the Indian Penal Code reads as under:
'463. Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.'
10. From plain reading of Section 463 of the I.P.C., it is clear that the prosecution has to prove that the accused has fabricated and forged the document. There is nothing on record to show that the accused forged the SSC certificate and produced the same before the PW2. PW2 only stated that the accused produced the certificate. The production is different than making forgery. There is no evidence to show that the accused forged the certificate and produced before the authority to get the increment. In fact, there was no necessity to make any forgery and produce a false document because the accused had already completed 45 years of age and he was exempted to show that he has passed Hindi and Marathi language examination. The prosecution failed to prove the material ingredients of Section 463 of the I.P.C. Therefore, the accused cannot be convicted for the offence punishable under Section 468 of the Indian Penal Code.
11. The accused is convicted for the offence punishable under Section 471 of the Indian Penal Code. This section is also not attracted because there was no necessity for the accused to produce and forge SSC Certificate because the accused had already completed 45 years of his age and as per the Government Resolution, he was exempted from filing any document/certificate to show that he has passed Hindi and Marathi language examination.
12. The learned Additional Public Prosecutor has pointed out Exhibit-56. This document show that this letter was issued by the Headmaster of New English High School, Wardha. This letter shows that the accused Moreshwar was not the student of their School, but the evidence of Shriram Retired Superintendent of New English High School, Wardha shows that the accused Moreshwar was the student of their School. As per their school record, Moreshwar was admitted in their School on 13-6-1956 and School Leaving Certificate was issued on 4-2-1964. The evidence adduced by the prosecution is contradictory. The evidence of witnesses Shriram not taken into consideration by the trial Court as well as the first appellate Court. The prosecution has miserably failed to prove any of the ingredients of Sections 463 and 471 of the I.P.C. The prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt for the offences punishable under Sections 468 and 471 of the Indian Penal Code. Hence, he is entitled for acquittal. In view of aforesaid, the following order is passed:
(1) The Criminal Revision Application is hereby allowed.
(2) The impugned judgment of the Chief Judicial Magistrate, Wardha in Regular Criminal Case No.88/2003 dated 09-05-2012 and confirmed by the Sessions Judge, Wardha in Criminal Appeal No.76/2012 dated 05-08-2017 are hereby quashed and set aside.
(3) The applicant – accused Moreshwar S/o Vitthalrao Lolankar is hereby acquitted of the offence punishable under Sections 468, 471 and 420 of the Indian Penal Code.
(4) The accused is on bail. His bail bond stands cancelled. The fine amount, if any, paid be refunded to the accused.
(5) Record and proceedings be sent back.