State Of Karnataka vs Dr. Sujatha
2023 Latest Caselaw 2202 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

      DATED THIS THE 13TH DAY OF APRIL 2023
                        BEFORE
      THE HON'BLE MR. JUSTICE RAJESH RAI K
             CRL.A. NO.100332 OF 2016
BETWEEN

      STATE OF KARNATAKA,
      REPRESENTED BY
      DETECTIVE INSPECTOR FRAUD
      SQUAD, C.I.D., BENGALURU,
      THROUGH THE ADDL. STATE
      PUBLIC PROSECUTOR,
      ADVOCATE GENERAL OFFICE,
      HIGH COURT OF KARNATAKA,
      DHARWAD BENCH.
                                            ...APPELLANT
(BY SRI.V.S.KALASURMATH, HCGP)

AND

     DR. SUJATHA W/O VENKATESH HALLUR,
     AGED 37 YEARS, WORKING AS MEDICAL OFFICER
     AT MALLAPUR AND ON DEPUTATION AT
     KARATAGI HOSPITAL, R/O: KARATAGI,
     GANGAVATHI TALUK, KOPPAL DIST.
                                        ...RESPONDENT
(BY SRI.N D GUNDE, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 01.07.2016 PASSED IN CRIMINAL CASE NO.199 OF
2009 BY THE SENIOR CIVIL JUDGE AND C.J.M., KOPPAL AND TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 420, 465, 468 AND 471 OF IPC.
                                2




      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.04.2023   FOR   JUDGMENT  AND   COMING   ON   FOR
PRONOUNCEMENT, THIS DAY, RAJESH RAI K., J. DELIVERED
THE FOLLOWING:
                         JUDGMENT

This appeal is filed by the State under Section

378(1) and (3) of Code of Criminal Procedure (for short'

Cr.P.C.) is directed against the judgment and order passed

by the Senior Civil Judge and CJM (for short 'trial judge') in

C.C.No.199/2009 dated 01.07.2016, acquitting the

respondent/accused for the offences punishable under

Sections 420, 465, 468 and 471 of IPC.

2. The factual matrix of the case is that, the

respondent/accused and her son met with road traffic

accident in the year 1999 and she had filed a claim petition

under the provisions of Motor Vehicles Act to claim

compensation before the MACT, Koppal. The accused with

dishonest intention to claim higher compensation

fabricated the hospital receipts/bills for higher amount for

the period from 02.06.1999 to 15.06.1999 instead of

06.06.1999 to 05.06.1999 i.e. relating to 'Shiva Krupa'

Hospital situated at Hubballi. The accused tampered the

receipts issued by the hospital to show that she was under

treatment as inpatient from 02.06.1999 to 15.06.1999.

The accused also forged the receipts by adding higher

amount in the receipts and thereby she filed a claim

petition against the KSRTC in MVC No.54/2000. It is

further case of the prosecution that the accused has also

given a false evidence before the Court and obtained

compensation of Rs.1,26,000/- in MVC case on the basis of

false/forged/created and fabricated hospital receipts. For

the said act of the accused, a complaint was came to be

registered on 23.08.2007 i.e. after lapse of 8 years by the

Security and Vigilance Officer, KSRTC, Davanagere

Division. Based on the said complaint, the Koppal Town

Police registered the FIR against the accused and her

husband (as per Ex.P.34). The said complaint was later

transferred to the Detective Inspector, Fraud Squad, CID,

Bengaluru and was investigated by PW.3-Inspector,

Detective Squad, CID, Bengaluru. On completion of the

investigation, Koppal Police have filed charge sheet against

the accused person before the court for the above

mentioned offences.

3. After taking cognizance of the case, the learned trial

judge framed the charges against the accused for the

offences punishable under Sections 420, 465, 468 and 471

of IPC which was denied by the accused. In order to prove

the said charges, prosecution in all examined 8 witnesses

as PW.1 to PW.8 and also got marked 37 documents as

Ex.P1 to P37. Although, the accused did not chose to

examine any witness on her behalf, however, got marked

5 documents as EXs.D1 to D5. After assessment of oral

and documentary evidence, the trial Judge acquitted the

accused from the charges leveled against her. Against the

said judgment, the appellant-State has filed this appeal.

4. Heard the learned HCGP Sri.V.S.Kalasurmath for the

appellant-State and learned counsel Sri.N.D.Gunde for

respondent and perused the material available on record.

5. Learned HCGP vehemently contended that the

judgment under appeal suffers from perversity and

illegality since, the same is not based on the evidence.

According to him, the learned trial judge failed to consider

the evidence available on record i.e. evidence of PW1,

PW7 and PW8-the employees and doctors of the hospital

where the accused took treatment, who have categorically

deposed that the accused/respondent admitted in their

hospital only for a period of three days and not for a period

of 15 days. As such, they expressed doubt in the

bills/receipts produced by the accused as per Ex.P4 and P5

that the same are forged one. Hence, their evidence

cannot be discarded. The PW.3 being the investigating

officer very clearly stated that during his investigation, it

was revealed that accused forged the bills and claimed

more compensation amount from the Tribunal in MVC

No.54/2000. As such, he started the investigation and laid

the charge sheet against the accused. Hence, the version

of PW1, PW3, PW7 and PW8 are quite probable and

believable. Without considering the same, trial judge erred

by passing impugned judgment. Hence, learned HCGP

prays to set aside the judgment and order of the trial

judge and prays to convict the accused for the charges

leveled against her.

6. Per contra, learned counsel appearing for the

respondent-accused vehemently contended that, the

judgment under appeal is well reasoned and based on the

evidence available on record. According to him, the

learned trial judge has rightly acquitted the accused due to

non-availability of evidence for the offences charged

against the accused. He would further contend that there

are no sufficient evidences to establish that the accused

forged and altered Exs.P4 and P5-alleged bills/receipts.

Prosecution totally failed to obtain the sample handwriting

of the accused and to send the same along with the

disputed handwriting found in Exs.P4 and P5 for the

opinion of handwriting expert. Unless, the opinion of the

handwriting expert is obtained, it is not possible to say

whether any alterations are made in the receipts. The

learned counsel contended that the investigation officer in

his cross examination has categorically admitted the fact

that opinion of the handwriting expert is necessary in order

to say in who's hand writing the receipts are written.

Further, the counsel would submit that the KSRTC did not

disputed those bills i.e. Exs.P4 and P5 which were

produced in the MVC cases and by considering those bills

along with other bills, the Tribunal has awarded

compensation of Rs.1,26,000/- to the accused-respondent.

The said award was challenged by the respondent-accused

before this Court by filing MFA Cross objection

No.222/2007 for enhancement of the compensation and

the same was allowed by this Court and hence, enhanced

compensation was granted to the respondent-accused. As

such, there is no question of forgery by the hands of

respondent-accused. Hence, he prays to dismiss the

appeal.

7. I have bestowed my anxious consideration both on

the argument advanced by the learned HCGP for the

appellant and learned counsel for the respondent-accused

and carefully perused the evidence and materials available

on record including the trial Court record.

8. Having heard the learned counsel for the parties and

having perused the evidence available on record, the point

that would arise for my consideration is

1. Whether the judgment passed by the Senior Civil Judge and CJM suffers from any perversity or illegality?

9. This Court being first appellate Court, it is necessary

to re-appreciate the evidence available on record. On a

cursory glance to evidence deposed by the witnesses

before the trial Court i.e. PW.1-Mahantesh, the receptionist

of Shiva Krupa, Hospital, Huballi, he deposed that the

respondent-accused was admitted in his hospital as

inpatient from 02.06.1999 to 05.06.1999 and the hospital

authority issued a bill to that effect.

10. PW.2 -Satish Hegade, the then Security and

Vigilance Officer, KSRTC, Davanagere Division, Koppal

town who lodged the complaint against the accused as per

Ex.P1 and identified EXs.P4 and P5 the alleged forged

documents concocted by the accused. According to him,

based on the MVC case filed by the accused in MVC

No.54/2000 and MVC No.56/2000, he investigated the

case records and filed the complaint against the accused.

11. PW.3-A.R.Karnool, the investigating officer in the

case i.e. the then detective Inspector of CID, Bengaluru

who obtained the admission and discharge register in

respect of the respondent-accused from the Shiva Krupa

Hospital, Hubballi and completed the investigation and

filed the charge sheet before the Court.

12. PW.4-B.Tippeswamy, the then Head constable of

Koppal Police station who received complaint from PW.2 as

per EX.P.34.

13. PW.5 -Subramanya who conducted the partial

investigation in the case. He recorded the further

statement of the complainant and also obtained details of

MVC case filed by the respondent-accused.

14. PW.6-Thimana Gouda is the circumstantial witness.

According to him, himself, accused and her son together

traveled in omni car and at that time the accident was

caused due to rash and negligent driving of the KSRTC bus

driver.

15. PW.7-Dr.M.S.Bembalagi, duty doctor of Shiva Krupa

hospital, Hubballi. According to him, he produced the

documents pertaining to the accused in respect of

admission and discharge in their hospital before the Police.

16. PW.8-Dr.Suresh Duggani is also a doctor of Shiva

Krupa Hospital and according to him, as per Ex.P15, the

accused were admitted in the said hospital from

06.06.1999 to 05.06.1999.

17. Before appreciating the evidence discussed supra, it

is just and necessary to discuss the relevant provisions

under Sections 463 and 464 of IPC i.e. forgery and making

a false document. Section 463 and 464 are extracted

below.

Section 463 of The Indian Penal Code "463. Forgery.-- [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.

Section 464 of The Indian Penal Code " 464 Making a false document. -- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently--

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any [electronic signature] on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed,

sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]

18. Under Section 464 of IPC, a person is said to make a

false document - Who dishonestly or fraudulently makes,

signs, seals or executes a document or part of a document

with the intention of causing it to be believed that such

document or part of document was made, signed, sealed

or executed, transmitted or affixed by or by the authority

of a person by whom or by who's authority he knows that

it was not made, signed, sealed or executed. "The

definition of false document is a part of document,

authority" both must be read together. If so, ingredients of

the offence forgery are

1) Fraudulently signing a documents or a part of document

with an intention of posing it to be believe that such

document or part of a document was signed by another or

under his authority; 2) Making such document with an

intention to commit fraud or that fraud may be committed.

19. In the two definitions mens ria described both in

Section 464 i.e. "Fraudulently" "the intention to commit

fraud" in Section 463 have the same meaning. The

redundancy has perhaps become necessary as allegation of

fraud is not the ingredients of the other mentioned in

Section 463. The idea of deceit is the necessary

ingredients of fraud but it does not exhaust it; an

additional allegation is implicit in the express" In section

464 two adverbs "dishonestly" "fraudulently" are used

alternatively indicating thereby that one excludes the other

that means they must be given different meaning. The

word 'defra' includes an allegation of deceit. Deceit is not

ingredient of definition of the word "dishonestly" while it is

an important ingredient of the definition of word

"Fraudulently". The just opposition of the two expression

"dishonestly" "fraudulently" used in the various sections of

the code indicates there close affinity. Therefore, the

definitions one may give colour to other.

20. In the case on hand, to prove the charges of forgery

leveled against the accused, though, the prosecution

examined eight witnesses, none of the witness deposed

about the act of forgery committed by the accused.

Admittedly, the prosecution failed to send the admitted

handwritings of the accused along with disputed

handwriting found in Exs.P4 and P5 to the handwriting

expert to get an opinion to prove charges leveled against

the accused. The Investigating Officer-PW3 categorically

admitted in his cross examination that the opinion of the

handwriting expert is necessary in order to say in who's

handwriting the receipts i.e Exs.P4 and P5 are written.

Further, he deposed that he has not seized the documents

from the hospital. As such, the prosecution totally failed to

place reliable evidence to prove the charges leveled

against the accused for the offence of forgery and

cheating. Admittedly, the alleged incident said to have

taken place in the year 1999 and the complaint filed by

PW.3 in the year 2007 i.e. after lapse of 8 years. There is

an inordinate delay in lodging the complaint. It is bounded

duty of the prosecution to explain such inordinate delay in

lodging the complaint.

21. The Hon'ble Apex Court in catena of judgments held

that the unexplained long delay in filling the complaint

creates doubt as to the genuineness of the prosecution

case. My view is fortified by the judgment in the case of

Shankarlal Vs. State of Rajastan reported in (2005)

SCC Crl. 579. Even otherwise as rightly contended by the

learned counsel for the respondent-accused that the MVC

claim filed by the accused or respondent allowed by the

MACT by awarding compensation. Though the said award

is challenged by the KSRTC before this Court by filing MFA

and the accused also filed a cross objection in the said

MFA, this Court vide judgment dated 22.05.2012 dismissed

the MFA filed by the KSRTC and allowed the cross

objection filed by the accused by enhancing the

compensation. That being the case, it is clear that, KSRTC

has not challenged the veracity/genuineness of Exs.P4 and

P5 either before MACT or before this Court in the MVC

cases. Hence, in my considered opinion, the prosecution

miserably failed to prove the charges leveled against the

accused and the learned trial judge has rightly acquitted

the accused from the charges leveled against her.

Accordingly, I answer the point for consideration.

2. In view of the above discussion, I proceed to pass

the following:

ORDER

The appeal is dismissed.

The judgment and order of Senior Civil Judge and

CJM, Koppal in CC No.199/2009 dated 01.07.2016 is

hereby confirmed.

SD/-

JUDGE

HMB