Gujarat High Court
State Of Gujarat vs Munni @ Kamar Begam Mohmed Imtiaz @ Dablu ... on 4 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1139 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
MUNNI @ KAMAR BEGAM MOHMED IMTIAZ @ DABLU SAIYED & ANR.
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Appearance:
MR RONAK RAVAL, APP for the Appellant(s) No. 1
(MR KK BRAHMBHATT)(2596) for the Opponent(s)/Respondent(s) No. 2
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This enhancement appeal is preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 ('Cr.P.C.', in short) against order of sentence dated 12.07.2007 passed by the learned Chief Judicial Magistrate, Rajkot in Criminal Case no. 7619 of 2006, wherein, the respondents - original accused no. 3 and 4 along with other accused came to be tried for Page 1 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined offences punishable under Sections 420, 465, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 ('IPC', for short). At the end of the trial, the learned trial Court found the respondents guilty of the offences punishable under Sections 465, 468 and 471 of the IPC and they have been sentenced as under:
Accused Conviction Sentence of Fine under imprisonment Sections Accused No.3 465 of IPC 6 months simple -
imprisonment
Accused No.3 468 of IPC 13 months simple Rs.500/-, in
imprisonment default to
under 1 month
simple
imprisonment
Accused No.3 471 of IPC 13 months simple Rs.500/-, in
imprisonment default to
under 1 month
simple
imprisonment
Accused No.4 465, 468 and no sentence was
471 of IPC awarded, however, the
trial court gave him the
benefit of probation
and released
accordingly
2. Facts and circumstances, giving rise to this appeal are that, 4 accused namely Kadar Kasambhai Odiya, Mohmed Mahetab Alam Saiyed, Munni @ Kamar Begam Saiyed and Ajaykumar Ramlal Pasi were prosecuted under Sections 420, 467, 468, 471 and 120B of the IPC.
According to the case of prosecution, in the month of May- 2005, the accused no.2 Mohmed Mahetab was arrested for Page 2 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined the offences punishable under the provisions of Immoral Traffic Act as the Ahmedabad DCB Branch registered an FIR against him and others. Thereafter, he was detained under the Preventive Detention Law and sent to Rajkot Central Jail. The request for tiffin service made to Rajkot Jail through accused no.1 - Kadar Odiya was allowed. In September, 2005, this Court quashed the detention order, but, due to offence registered under the Immoral Traffic Act, the accused no.2 was in Rajkot Jail. It is further case of prosecution that, the accused conspired and in furtherance of conspiracy, by forging the signature of the Judge of Metro Court, Court No.11, a bogus surety bond as well as release order had been created with a common object to release the accused no.2 from Rajkot Jail. The accused no.1, by sealed envelope, handed over the alleged fake orders to the Rajkot Jail Authority. The Metro Court No.11, Ahmedabad learnt that, by bogus and false security bond, the accused no.2 was released by the Jail Authority. The Court intimated to the Rajkot Jail Authority. It is in these background facts, the FIR came to be lodged against 4 persons, inter alia, alleging that, they created forged signature and false document of the Court No.11, Ahmedabad and produced it before the Jail Authority, Rajkot, whereby, they committed the offence of forgery, making false documents and used it as genuine for the purpose of getting bail of accused no.1. Pursuant to the said FIR, the investigation had been proceeded. During the Page 3 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined investigation, it emerges that, the accused no.3 who was closely associated with the accused no.2 and it is his behest, contacted the advocate - accused no.4 and in connivance of each other, created a false document and by forging the signature of Presiding Officer of the Court, presented before the Jail Authority and obtained the favourable order. The natural handwriting of accused no.4 were obtained and as per the report of Handwriting Expert, the disputed writings and signatures and standard writings and signatures were written by one and same person.
The investigating agency found sufficient material for the charge against the 4 persons as named above and finally they had been chargesheeted and prosecuted. In order to prove the charge, the prosecution had examined following oral evidence and exhibited documents:
Oral evidence PW 1 - Exh. 66 Himatlal Mavjibhai Bodhani, handwriting expert PW 2 - Exh. 126 Jashubhai Lalabhai Dabhi, complainant PW 3 - Exh. 141 Kanchanbhai Lakshmanbhai Tadvi PW 4 - Exh. 142 Arvindbhai Dataniya PW 5 - Exh. 142/A Kanubhai Patel PW 6 - Exh. 148 Sunil Dirajlal PW 7 - Exh. 150 Shailesh Tansukhlal PW 8 - Exh. 152 Jitendra Keshavbhai PW 9 - Exh. 156 Vinod Ramjibhai PW 10 - Exh. 160 Prakashbhai Manibhai PW 11 - Exh. 166 Dhirendra Thakurbhai PW 12 - Exh. 169 Jitudan Devidan Gadhvi PW 13 - Exh. 172 Rambhai Somabhai Vaghela Page 4 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined Documentary evidence Exh. 70, 71 Bail bond Exh. 72 Jail Yadi Exh. 73 to 78 Handwriting specimens of accused no. 4 Ajaykumar Ramlal Exh. 79 to 84 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 85 to 90 Document containing signature of accused no. 4 Ajaykumar Ramlal Exh. 91 to 96 Handwriting specimens of accused no. 4 Ajaykumar Ramlal Exh. 97 to 102 Handwriting specimens of accused no. 4 Ajaykumar Ramlal Exh. 103 to 108 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 109 to 114 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 115 to 120 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 121 Diary Exh. 122 Opinion of Handwriting expert Exh. 123 Reasons for opinion of handwriting expert Exh. 127 Jail warrant of accused no. 2 Mohmed Mahetab Alam Exh. 128 to 130 Letter by Asst. Superintendent of Police, Ahmedabad Jail alongwith order Exh. 131 Jail Yadi Exh. 132, 133 Application by accused no. 1 Kadar Kasambhai containing his signature alongwith permission.
Exh. 134 True copy of entry in tiffin register
Exh. 135 Order passed by High Court of Gujarat
Exh. 136, 137 Photocopy of page from Bail bond register
Exh. 138 Office copy of letter
Exh. 140 Complaint
Exh. 143 Fax message
Exh. 144 Panchanama of physical examination of accused no. 2
Mohmed Mahetab Alam
Exh. 146 Statement by accused no. 2 Mohmed Mahetab Alam after
arrest
Exh. 147 Report of serious offence
Exh. 149 Panchanama
Exh. 151 Panchanama
Exh. 164 Application by I/c Superintendent to Metropolitan
Magistrate, Ahmedabad alongwith order At the conclusion of trial, the incriminating material Page 5 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined brought to the notice of the accused which they denied and did not examine any defense witnesses. The Chief Judicial Magistrate Court, Rajkot, after appreciation of evidence, does not believe the charge of Section 120B, 420 and acquitted the accused from the said charges. The learned court below acquitted accused no.1 and 2 from all charges as there is no evidence to prove their complicity in the offence. The court below convicted the accused no.3 and 4 for the charge punishable under Sections 465, 468 and 471 of the IPC. The accused no.3 was sentenced to undergo 13 years imprisonment and fine of Rs.500/-, whereas, the accused no.4 was given a benefit of probation instead of sentencing him.
3. In the aforesaid facts, the State, being aggrieved with the order dated 12.07.2007, has filed this appeal against the sentence on the ground of its inadequacy.
4. We have heard learned APP Mr. Ronak Raval for the Appellant-State.
5. Mr. Ronak Raval, learned APP assailing the grounds recorded by the court below, has submitted that, the offence proved is serious in nature and the way in which it was committed, the court below ought to have punished the accused to suffer the maximum punishment prescribed under Section 465, 467 and 471 of the IPC. The accused have created a Page 6 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined false document and forged the signature of the Magistrate which cannot be taken lightly and therefore, the court below has committed error in taking lenient view while imposing sentence and the reasons assigned for meager sentence are against the settled policy of sentence.
In the circumstances, learned APP prays that, this is a fit case to interfere with the order of sentence and appeal may be allowed and the respondents-accused be punished with the maximum imprisonment as prescribed.
6. It is the case of the respondents that, the court below has properly exercised its discretion and while awarding the sentence, the court below has considered peculiar facts and circumstances of present case and in absence of any antecedents of like nature and the accused being a lady accused, she has been directed to undergone 13 months of imprisonment, whereas, the accused no.4, being an advocate, given a benefit of probation. It is in these background facts, no strong reasons exist on the face of judgment of conviction and sentence and same cannot be said to be inadequate or lenient. In such circumstances, it is prayed that, there is no merits in the appeal and same may be dismissed.
7. The State has filed this appeal under Section 377 of the Cr.P.C. seeking enhancement of the sentence on the ground of its inadequacy. The Supreme Court in the case Page 7 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined of Bed Raj Vs. State of U.P., AIR 1955 SC 778, laid down the principle that, how and in what circumstances, the Appellate Court can enhance the sentence. In the said judgment, it is laid down that, a question of sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an Appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment.
8. In light of the principle of law and applying the same to the facts of present case, the respondent-accused- original accused no.3 - Munni @ Kamar Begam who was related to accused no.2, found guilty for the act of forgery and creation of false document along with the accused no.4 who was practicing advocate. It is relevant to note that, the prosecution failed to adduce a direct evidence to prove that, the respondent-lady accused in connivance with the advocate, committed an offence of forgery by making false document. It is the statutory right of the accused no.3 - Munni @ Kamar Begam to plead her innocence and claim acquittal in the enhancement appeal. Thus, on merits, so far as accused no.3 - Munni @ Kamar Begam is concerned, there is no sufficient evidence and despite of this, she has been convicted and directed to suffer 13 months imprisonment and while imposing the sentence, the learned court below has considered her age, Page 8 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined antecedents and other attending circumstances. In such circumstances, we are satisfied that, the discretion exercised by the Court below cannot be said to be perverse and against the settled principle of law and therefore, the sentence awarded qua accused no.3 Munni @ Kamar Begam is concerned, it cannot be said to be inadequate and lenient and in absence of any strong reasons for enhancement of the sentence, we do not find sufficient ground warranting interference.
9. So far as accused no.4 - Ajay Pasi is concerned, he has been given a benefit of probation and no sentence has been awarded to him. In such circumstances, we are of the view that, the appeal under Section 377 for enhancement on the ground of its inadequacy is not maintainable. The section provides that the State can file an appeal to the High Court against the sentence. Here in this case, conviction has been recorded by the court below, but, instead of awarding sentence of imprisonment, the accused is released on probation under the Probation of Offenders Act, 1958 and in view of Section 360 of the Cr.P.C., the accused was released on probation. The Supreme Court in the case of State of U.P. Vs. Nand Kishore Mishra, 1991 SCC (Supp) 2 473, in identical case, held and observed that, where the conviction is recorded, but instead of awarding sentence of imprisonment, the convict is released on probation, then, Page 9 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025 NEUTRAL CITATION R/CR.A/1139/2007 JUDGMENT DATED: 04/02/2025 undefined it is a case where no sentence at all has been awarded and as such, Section 377(1) is not attracted. The Supreme Court has further observed that, an appeal against the order of probation shall lie to the court of sessions and therefore, the appeal filed by the State under Section 377 is incompetent. In the facts of present case, the judgment and order of probation has not been challenged by filing the appeal before the Competent Court and when there is no sentence of imprisonment, the question does not arise to entertain the enhancement appeal.
10. For the aforementioned reasons, the appeal fails and it is hereby dismissed. The Registry shall send the R & P to the concerned trial court henceforth.
Sd/-
(ILESH J. VORA,J) Sd/-
(HEMANT M. PRACHCHHAK,J) TAUSIF SAIYED Page 10 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:21 IST 2025