Kerala High Court
Johny vs State Of Kerala on 15 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
CRL.REV.PET NO. 2296 OF 2005
AGAINST THE JUDGMENT DATED 19.08.2005 IN CRA 172/2003 OF
ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II,
THODUPUZHA
AGAINST THE JUDGMENT DATED 15.05.2003 IN CC 180/1998 OF
JUDICIAL MAGISTRATE OF FIRST CLASS-II,THODUPUZHA
REVISION PETITIONER/APPELLANT/1ST ACCUSED:
JOHNY KUNNUMPURATH HOUSE, VADAKKUMMURI BHAGOM,,
KARIMKUNNAMKARA, KARIMKUNNAM VILLAGE.
BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR
SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA HIGH COURT OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDINGS,ERNAKULAM
(CIRCLE INSPECTOR OF POLICE, THODUPUZHA)
ADV. MAYA. M.N, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL
HEARING ON 23.11.2023, THE COURT ON 15.02.2024 DELIVERED THE
FOLLOWING:
2
Crl.R.P.No.2296/2005
"CR"
G.GIRISH, J.
---------------
Crl.R.P.No.2296 of 2005
------------------------------
Dated this the 15th day of February, 2024
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ORDER
The revision petitioner herein was booked by the
Thodupuzha police on the basis of a complaint preferred by
the Sub Judge, Thodupuzha in connection with the forgery of
succession certificate in O.P.No.03/1994 of the said court, and
the attempt to collect the insurance amount and other benefits
of the deceased wife of the revision petitioner making use of
the above said forged document.
2. It is stated that the wife of the revision petitioner,
who was a Captain in the Indian Army, met with unnatural
death, in respect of which her mother and siblings raised
complaint against the revision petitioner for having caused her
death. The alleged attempt of the revision petitioner to whisk
away the insurance money and other benefits of his wife by
making use of forged succession certificate, was done shortly
thereafter. In the trial conducted before the Judicial First Class
Magistrate-II, Thodupuzha, 32 witnesses were examined from
the part of the prosecution as PW1 to PW32 and 27 documents
were marked as Exts.P1 to P27. Four material objects were
also identified and marked as MO1 to MO4. After an evaluation
of the above evidence and hearing both sides, the learned
Magistrate found the revision petitioner guilty of commission
of offence under Sections 466, 467, 468, 471, 475 and 511 of
420 I.P.C and convicted him. He was sentenced to simple
imprisonment for two years each and a fine of Rs.2,000/- each
for the offence under Sections 466, 468, 471 and 475 I.P.C
and simple imprisonment for 2½ years and fine Rs.3,000/- for
the offence under Section 467 I.P.C. For the offence under
Section 511 of 420 I.P.C revision petitioner was awarded
simple imprisonment for 1½ years and fine Rs.2,000/-.
Appropriate default clauses of simple imprisonments for non-
payment of fines were also provided in the aforesaid judgment
dated 15.05.2003.
3. The Additional Sessions Court (Adhoc-II),
Thodupuzha, in Crl.A.No.172/2003 confirmed the above
verdict of the learned Magistrate and upheld the conviction and
sentence. Aggrieved by the above concurrent verdicts of the
trial court and the appellate court, the petitioner is here before
this Court with this revision.
4. Heard the learned counsel for the revision petitioner
and the learned Public Prosecutor.
5. The verdicts of the courts below are challenged by
the revision petitioner on three counts. Firstly, it is stated that
the original succession certificate, and the original petition for
the issuance of succession certificate alleged to have been
forged by the revision petitioner, are not recovered by the
investigating agency and brought in evidence. The above
challenge of the revision petitioner has been rightly repelled
by the appellate court stating the reason that the forged
documents which the revision petitioner produced before the
Army Insurance Department were in fact the documents
purported to be certified copies of the succession certificate
and petition for succession certificate issued from the Sub
Court, Thodupuzha. The forgery committed by the revision
petitioner in this regard came to the notice of the learned Sub
Judge, who was examined as PW2 before the trial court, when
the Army Insurance Department sent the photocopies of the
above forged certified copy of succession certificate and the
forged certified copy of the petition for succession certificate
which are marked as Exts.P2 and P4 respectively, and a
photocopy of the covering letter sent by the revision petitioner,
which is marked as Ext.P3, to him, upon getting suspicious of
the said documents. It is thereafter that the learned Sub
Judge, having been convinced about the forgery and attempt
to commit cheating on the part of the revision petitioner,
preferred Ext.P1 complaint before the Circle Inspector of
Police, Thodupuzha, which resulted in the commencement of
investigation in this case. Later on, the investigating officer
had recovered the forged certified copy of the succession
certificate and the forged certified copy of the original petition
for the issuance of succession certificate, which the revision
petitioner submitted before the Army Insurance Department,
and those records are marked as Exts.P9 and P8 respectively.
The original forwarding letter sent by the revision petitioner to
the Army Insurance Department, while despatching the above
forged documents, was also recovered and produced before
the trial court, but somehow or other the learned Assistant
Public Prosecutor who conducted the case for the prosecution
before the trial court did not care to get that document
exhibited in evidence. Thus, it could be seen that the
challenge raised by the revision petitioner about the flaw on
the part of the investigating agency in recovering the original
forged records, no more survive due to the reason that Exts.P8
and P9 which are the actual documents forged by the revision
petitioner, have been brought on record.
6. Secondly, it is contended by the learned counsel for
the revision petitioner that prosecution failed to adduce
convincing evidence to show that it was the revision petitioner
who sent Exts.P8 and P9 to the Army Insurance Department,
and hence the prosecution against the revision petitioner is
prima facie unsustainable. The challenge in the above regard
is also bereft of merit since the prosecution has successfully
brought on record the evidence pertaining to the creation of
Exts.P8 and P9 by the revision petitioner, and the receipt of
those records by the Army Insurance Department through
post, as sent by the revision petitioner. The evidence tendered
by PW14, the Advocate Clerk associated with the office of the
Advocate (PW6) whom the revision petitioner approached for
filing original petition before the Sub Court, Thodupuzha for
the issuance of a succession certificate, would go to show that
revision petitioner had obtained a model succession certificate
from him. The evidence of PW7, a person involved in typing
work at the Market Road, Thodupuzha, convincingly establish
that Exts.P8 and P9 documents as well as Ext.P10, a purported
authorisation in stamp paper executed by the mother of the
deceased wife of the revision petitioner in his favour, were
prepared by PW7 as requested by the revision petitioner, and
handed over to him. The evidence of PW7 further reveals that
he identified the revision petitioner during the course of
investigation, and that he also tendered statement under
Section 164 Cr.P.C (Ext.P13) to the Magistrate concerned
(PW15) at the stage of investigation. As regards the affixure
of the forged seal of the Sub Court, Thodupuzha in Exts.P8 and
P9, PW8 who was involved in the business of moulding seals
and rubber stamps, gave evidence before the trial court that
he had prepared the seals as requested by the revision
petitioner, who made a payment of Rs.60/- as advance at the
time when the job was entrusted, and a payment of Rs.25/-
as the balance amount at the time when the seals were handed
over to the revision petitioner. The register maintained by PW8
at his establishment in connection with the orders made by
customers for the preparation of seals, has been brought in
evidence as Ext.P11, and the relevant entry relating to the
order made by the revision petitioner, as Ext.P11(a), before
the trial court.
7. As regards the despatch of Exts.P8 and P9 by the
revision petitioner to the Army Insurance Department, there
is the evidence of PW30, the Assistant Director of Army Group
Insurance Fund, New Delhi that his office received letter from
the revision petitioner, addressed to the Army Group Insurance
Fund, enclosed with a succession certificate purportedly issued
from the Sub Court, Thodupuzha and a copy of a petition for
succession certificate. The above records were later on seized
by the police from the office of PW30. Thus, the evidence
adduced by the prosecution in the above regard would
convincingly establish the nefarious act of the revision
petitioner who forged Exts.P8 and P9 and forwarded the same
to the Army Insurance Department with the intention to cheat,
not only the mother and siblings of his deceased wife, but also
the Indian Army and the nation as well.
8. Thirdly, it is argued by the learned counsel for the
revision petitioner that the trial court wrongly relied on an
F.S.L report which was not marked in evidence, towards
arriving at the conclusion that the revision petitioner has
involved in the forgery alleged in this case. It is the further
argument of the learned counsel for the revision petitioner that
the appellate court which realised the above fallacy on the part
of the trial court, committed another mistake by resorting to
Section 73 of the Indian Evidence Act to compare the admitted
signatures of the revision petitioner which were available on
record, with the disputed signature seen in the photocopy of
forwarding letter purportedly sent by the revision petitioner, to
arrive at the conclusion that both those signatures are of the
same person.
9. As regards the procedural irregularity committed by
the learned Magistrate in relying upon and acting on the F.S.L
report and other accompanying records, without marking
those documents and giving an opportunity to the revision
petitioner to challenge the same, the appellate court has
rightly acknowledged that the above course adopted by the
learned Magistrate was erroneous. However, it has been
observed by the appellate court in the impugned judgment
dated 19.08.2005 that the documents which are marked in
evidence are available for a comparison of the writings and
signatures of the accused, and accordingly proceeded with the
above course and arrived at the finding that there is clinching
evidence available in the case to find that it was the revision
petitioner herein, and nobody else, who forged documents and
produced the same before the Army Group Insurance Fund to
get the death benefits of his wife.
10. The extent to which reliability could be attributed
upon the conclusions arrived by a court on the basis of a
comparison of the disputed signatures and handwritings with
the admitted signatures and handwritings by invoking Section
73 of the Indian Evidence Act, has been laid down by a catena
of decisions of the Apex Court.
11. In Fakhruddin v. State of M.P [AIR 1967 SC
1326], the Apex Court held that even in a case where there
is expert opinion as to the disputed handwritings and
signatures, the court must satisfy itself by such means as are
open that the opinion of the expert may be acted upon, and
that one such means open to the court is to apply its own
observation to the admitted or proved writings and to compare
them with the disputed one, not to become a handwriting
expert but to verify the premises of that expert in the one case
and to appraise the value of the opinion in the other case.
Paragraphs 10 and 11 of the above decision of the Apex Court
read as follows:
"10. Evidence of the identity of handwriting
receives treatment in three sections of the Indian
Evidence Act. They are S.45, 47 and 73. Handwriting
may be proved on admission of the writer, by the
evidence of some witness in whose presence he wrote.
This is direct evidence and if it is available the evidence
of any other kind is rendered unnecessary. The Evidence
Act also makes relevant the opinion of a handwriting
expert (S.45) or of one who is familiar with the writing
of a person who is said to have written a particular
writing. Thus besides direct evidence which is of course
the best method of proof, the law makes relevant two
other modes. A writing may be proved to be in the
handwriting of a particular individual by the evidence of
a person familiar with the handwriting of that individual
or by the testimony of an expert competent to the
comparison of handwritings on a scientific basis. A third
method (S.73) is comparison by the Court with a writing
made in the presence of the Court or admitted or proved
to be the writing of the person.
11. Both under S.45 and S.47 the evidence is an
opinion, in the former by a scientific comparison and in
the latter on the basis of familiarity resulting from
frequent observations and experience. In either case the
Court must satisfy itself by such means as are open that
the opinion may be acted upon. One such means open
to the Court is to apply its own observation to the
admitted or proved writings and to compare them with
the disputed one, not to become an handwriting expert
but to verify the premises of the expert in the one case
and to appraise the value of the opinion in the other case.
This comparison depends on an analysis of the
characteristics in the admitted or proved writings and the
finding of the same characteristics in large measure in
the disputed writing. In this way the opinion of the
deponent whether expert or other is subjected to
scrutiny and although relevant to start with becomes
probative. Where an expert's opinion is given, the Court
must see for itself and with the assistance of the expert
come to its own conclusion whether it can safely he held
that the two writings are by the same person. This is not
to say that the Court must play the role of an expert but
to say that Court may accept that fact proved only when
it has satisfied itself on its own observation that it is safe
to accept the opinion whether of the expert or other
witness."
12. In State of Gujarat v. Vinaya Chandra Chhota
Lal Pathi [AIR 1967 SC 778] the Apex Court held that a
court can itself compare the writings in order to appreciate
properly the other evidence produced before it in that regard.
The relevant portion in paragraph 10 of the aforesaid decision
reads as follows:
10. "............ A Court is competent to compare the
disputed writing of a person with others which are
admitted or proved to be his writing. It may not be safe
for a Court to record a finding about a person's writing
in a certain document merely on the basis of
comparison, but a Court can itself compare the writings
in order to appreciate properly the other evidence
produced before it in that regard. The opinion of a
handwriting expert is also relevant in view of S. 45 of
the Evidence Act, but that too is not conclusive. It has
also been held that the sole evidence of an handwriting
expert is not normally sufficient for recording a definite
finding about the writing being of a certain person or
not. It follows that it is not essential that the handwriting
expert must be examined in a case to prove or disprove
the disputed writing. It was therefore, not right for the
learned Judge to consider it unsafe to rely upon the
evidence of the complainant in a case like this, i. e., in
case in which no handwriting expert had been examined
in support of his statement.."
13. In Ajit Savant Majagavi v. State of Karnataka
[(1997) 7 SCC 110] the Apex Court cautioned the courts of
the country against taking upon itself the responsibility of
comparing the disputed signature with the admitted signature
or handwriting though the courts are having power under
Section 73 of the Evidence Act to adopt such a course.
Paragraph 38 of the aforesaid decision of the Apex Court reads
as follows:
"38. As a matter of extreme caution and judicial
sobriety, the Court should not normally take upon
itself the responsibility of comparing the disputed
signature with that of the admitted signature or
handwriting and in the event of slightest doubt, leave
the matter to the wisdom of experts. But this does not
mean that the Court has not the power to compare
the disputed signature with the admitted signature as
this power is clearly available under S.73 of the Act.
(See State (Delhi Administration) v. Pali Ram, AIR
1979 SC 14 : 1979 (2) SCC 158)."
14. In Lalit Popli v. Canara Bank and Others [AIR
2003 SC 1796] it has been held by the Apex Court that courts
can compare the admitted writings with disputed writings and
come to its own independent conclusion irrespective of the
opinion of handwriting expert. Paragraph 13 of the aforesaid
decision of the Apex Court reads as follows:
" It is to be noted that under S.45 and 47 of the
Evidence Act, the Court has to take a view on the opinion
of others, whereas under S.73 of the said Act, the Court
by its own comparison of writings can form its opinion.
Evidence of the identity of handwriting is dealt with in
three Sections of the Evidence Act. They are S.45, 47
and 73. Both under S.45 and 47 the evidence is an
opinion. In the former case it is by a scientific comparison
and in the latter on the basis of familiarity resulting from
frequent observations and experiences. In both the
cases, the Court is required to satisfy itself by such
means as are open to conclude that the opinion may be
acted upon. Irrespective of an opinion of the Handwriting
Expert, the Court can compare the admitted writing with
disputed writing and come to its own independent
conclusion. Such exercise of comparison is permissible
under S.73 of the Evidence Act. Ordinarily, S.45 and 73
are complementary to each other. Evidence of
Handwriting Expert need not be invariably corroborated.
It is for the Court to decide whether to accept such an
uncorroborated evidence or not. It is clear that even
when experts' evidence is not there, Court has power to
compare the writings and decide the matter. [See Murari
Lal v. State of Madhya Pradesh (1980 (1) SCC 704)."
15. Thus the consistent view of the Apex Court with
regard to the evidentiary value of the findings of the court
which embark upon the task of comparing the disputed
handwritings and signatures with the admitted handwritings
and signatures, on its own accord, is that as a matter of
prudence, it is necessary to look for other evidence including
the opinion of the expert under Section 45 of the Evidence Act,
before arriving at a conclusion on the issue involved. In other
words, it has been laid down by the settled judicial precedents
that, though it would be unsafe and improper to decide an
issue regarding disputed handwriting, signatures, fingerprints,
etc., solely on the basis of the conclusions arrived by the court,
by resorting to a comparison of the records on its own accord
invoking Section 73 of the Evidence Act, in cases where there
are other supportive evidence pointing to such conclusions it
is well within the ambit of power of the court to decide the
case on the basis of the exercise undertaken by it in that
regard as well.
16. As far as the present case is concerned, it could be
seen from the impugned judgment of the Appellate Court that
the finding regarding the involvement of the revision petitioner
in the crime has been arrived, on the basis of the other
independent evidence, which would clearly reveal the criminal
acts of forgery and attempt to commit cheating, perpetrated
by the revision petitioner. It has to be stated here that even
without an exercise on the part of the court towards comparing
the admitted signatures of the revision petitioner with the
signature seen in Ext.P3 and its original, there are clear
circumstances pointing to the involvement of the revision
petitioner in the crime, which the prosecution has successfully
brought out. Therefore, the mere remark of the Appellate
Court with regard to the identity of signatures and
handwritings of the revision petitioner in Ext.P3 letter and
Exts.P19 & P20, after resorting to a comparison of those
records, does not suffer from any legal infirmity, since the
course adopted in the above regard would only corroborate the
evidence which is there already on record, pointing to the guilt
of the accused (revision petitioner).
17. The irresistible conclusion which could be drawn
from the discussion aforesaid, is that there is absolutely no
reason to interfere with the findings of the courts below,
holding the accused guilty of committing the offence under
Sections 466, 467, 468, 471, 475 and 511 of 420 I.P.C. It is
well-settled that the court exercising revisional jurisdiction
should be loath in interfering with the findings of the courts
below, unless there are glaring illegalities or improprieties
committed by such courts. As regards the appreciation of
evidence, it is not possible to unsettle the findings of the courts
below, unless it is shown that there was manifest illegality or
error by refusing to act upon admissible evidence, or relying
on evidence which were totally inadmissible. The proposition
of law in this regard has been upheld by the Apex Court in
State of Kerala v. Jathadevan Namboodiri [AIR 1999 SC
981], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke & Anr. [2015 (3) SCC 123] and Kishan Rao v.
Shankargouda [(2018) 8 SCC 165].
18. Now, the only question remains is about the
suitability of the punishment awarded to the revision
petitioner. On that score, it has to be stated that the trial court
has imposed sentence of imprisonment and fine for various
offences commensurate with the gravity of the crime
committed by the revision petitioner. The sentence of
substantial imprisonment under all the above Sections have
been directed to run concurrently, and set off is seen allowed
under Section 428 Cr.P.C. The Appellate Court has rightly
found that there is no reason to interfere with the sentence so
awarded by the trial court. Accordingly, I find that there is
absolutely no reason to alter or modify the sentence awarded
by the trial court, which has been confirmed in appeal.
In the result, the revision petition stands dismissed.
Transmit a copy of this judgment, along with the case
records to the trial court, for immediate enforcement of the
sentence.
(sd/-)
G.GIRISH, JUDGE
jsr
