Madras High Court
Loganathan vs The State Of Tamil Nadu on 27 May, 2022
Crl.R.C.No.238 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.05.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
13.04.2022 27.05.2022
Crl.R.C.No.238 of 2017
Loganathan ... Petitioner
Vs.
The State of Tamil Nadu,
represented by Inspector of Police,
Vellore District Crime Branch, Vellore.
Crime No.30 of 2013 ... Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 and 401 of
Criminal Procedure Code, to call for the records in C.A.No.25 of 2016 on
the file of the Court of Principal District and Sessions Judge, Vellore dated
03.10.2016 confirming the order of conviction of the learned Judicial
Magistrate No.2, Vellore in C.C.No.393 of 2015 dated 26.04.2016 and set
aside the same.
1/16
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Crl.R.C.No.238 of 2017
For Petitioner : Mr.N.R.Elango
Senior Counsel
for Mr.R.Ganesan
For Respondent : Mr.R.Kishore Kumar
Government Advocate
ORDER
The petitioner/accused in C.C.No.393 of 2015 was convicted by the
learned Judicial Magistrate No.II, Vellore by judgment dated 26.04.2016 for
the offence under section 466 IPC and sentenced to undergo one year
rigorous imprisonment and to pay a fine of Rs.1000/-, in default to undergo
three months simple imprisonment, for the offence under Section 468 IPC
and sentenced to one year rigorous imprisonment and to pay a fine of
Rs.1,000/-, in default to undergo three months simple imprisonment, for the
offence under Section 471 IPC and sentenced to undergo one year rigorous
imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three
months simple imprisonment, for the offence under Section 420 IPC and
sentenced to undergo one year rigorous imprisonment and to pay a fine of
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Crl.R.C.No.238 of 2017
Rs.1,000/-, in default to undergo three months simple imprisonment and the
sentence to run concurrently. Against which, the petitioner preferred an
appeal in C.A.No.25 of 016 before the Sessions Court. The learned
Principal District and Sessions Judge, Vellore by judgment dated
03.10.2016 dismissed the appeal confirming the conviction and sentence of
the Trial Court, against which, the present revision petition is filed.
2.Before the Trial Court, P.W.1 to P.W.8 examined and Ex.P1 to
Ex.P9 marked. On the side of the defence, no witnesses examined and no
documents marked. On conclusion of the trial, the Trial Court convicted the
petitioner which was confirmed by the Lower Appellate Court as stated
above.
3.The brief facts of the case is that the petitioner joined as Junior
Assistant in Commercial Taxes Department, Vellore. During the year 2000,
the petitioner submitted a certificate/Ex.P.4 dated 04.08.2000 claiming that
he passed the Junior Accountancy Test. Based on the application submitted
by the petitioner, entries were made in his Service Register. Thereafter, the
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Crl.R.C.No.238 of 2017
petitioner got promoted on 02.01.2007 and transferred to Salem. The
Department sent the certificate of the petitioner along with ten others for
verification with the Director of Technical Education, who verified the same
and found that nine certificates were genuine and two certificates were
forged, one such was that of the petitioner. After making internal
verifications, on the instructions of the Commissioner of Commercial Taxes,
the Assistant Commissioner of Commercial Tax lodged a complaint
annexing the report and documents to the respondent police on 06.05.2013.
The respondent registered a case in Crime No.30 of 2013 for the offence
under Section 466, 468, 471 and 420 IPC. After investigation, final report
was filed before the learned Judicial Magistrate No.II, Vellore.
4.The contention the petitioner is that the petitioner appeared for the
Junior Accountancy Test which is a Departmental examination, which
Government servant is required to clear. The petitioner applied for the same,
appeared for the examination and thereafter, the certificate/Ex.P4 was sent
to him by post from the Director of Technical Education. On receipt of the
same, the petitioner submitted a request letter to P.W.4 along with the
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Crl.R.C.No.238 of 2017
certificate and the postal cover. P.W.4 recorded the same in his Service
Register which is marked as Ex.P5. Thereafter, the petitioner is not aware
of what had happened. Later the petitioner came to know that P.W.3
received a letter from the Commissioner, Commercial Tax that there is some
doubt with regard to technical education certificates of 11 persons, hence
certificates including that of the petitioner in Certificate Serial
No.JEG051112 [Registration No.315484] were sent to the head office, from
there it was forwarded to the Director of Technical Education, who by Ex.P3
later informed that the petitioner's certificate found to be forged and the
petitioner had not cleared the Accounts Test. This happened 13 years before
and thereafter, the complaint was lodged. It is further submitted that in this
case eight witnesses examined. P.W.1/Assistant Commissioner, Commercial
Tax Office, Tiruvannamalai is the complainant who forwarded the complaint
along with the documents, P.W.2/Assistant Commissioner, Commercial Tax
Office, Erode who states about the petitioner employed at Sathyamangalam
within the Erode Division, P.W.5/Deputy Commissioner, Commercial Tax
Office, Vellore states about the Commissioner in proceedings
Na.Ka.No.B2/49307/2006/1 dated 12.10.2006 promoted the petitioner from
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Crl.R.C.No.238 of 2017
Assistant to Assistant Commercial Tax officer and the same was recorded in
the Service Register of the petitioner. P.W.6 is the Regional Officer of
Technical Education who states that he received Ex.P2/letter to verify the
genuineness of the certificate of nine persons. Thereafter, Ex.P4 was
verified and found to be forged.
5.In the cross examination, P.W.6 admits that he has not given details
as to how and in what manner Ex.P4 was verified and found to be forged, he
simply states that he verified the certificate with the registers maintained in
the office and given the report. He further clarifies by stating that the
documents are confidential documents and hence not produced the same, if
the Court or the Police request for the same, the same shall be produced,
thereafter, no steps taken by the prosecution for production of registers. In
view of the same, the discrepancy in the certificate and the register not
proved. It is further submitted that the certificate issued by the Director of
Technical Education is not disputed, the dispute is with regard to recording
of pass in the Accounts Test, which is not verified, compared with any of the
records, no register, answer sheet, etc. produced before the Court. Hence, in
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Crl.R.C.No.238 of 2017
this case the basic foundation and the primary aspect of the case not proved.
P.W.7 and P.W.8 are the Investigating Officers, who admit that they have
not taken any steps to verify the genuineness of the documents since already
the Commercial Tax Officer took steps to verify the same and thought fit not
to reconfirm the same.
6.In this case, the primary document is ExP.4, P.W.4 speaks about
the same and confirms that Ex.P4 was submitted along with the requisition
letter but the said requisition letter not produced. P.W.6, official from the
Technical Education Department states that Ex.P2 and Ex.P3 would confirm
that Ex.P4/certificate of the petitioner, shows passed in second class in
Accountancy, is not correct and it is forged one. The result and the marks
obtained was verified with the registers but no register produced in this case.
He further submitted though he states that it is a confidential document,
there is nothing confidential with regard to the marks in the register. Hence,
the prosecution miserably failed to prove that Ex.P4 is a forged document.
The Lower Court had gone on a wrong premise that Ex.P4 was submitted by
the petitioner, hence an adverse inference to be taken that a forged document
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Crl.R.C.No.238 of 2017
was produced by the petitioner. P.W.4 admits that along with the postal
cover, covering letter, certificate was produced and P.W.6 admits that the
certificate format and the certificate Sl.No.JEG051112 are all genuine
except for the result. Obviously, the certificate format issued by the Director
of Technical Education is not denied. Thus, the Trial Court and the Lower
Appellate Court failed to consider this important aspect and wrongly
convicted the petitioner.
7.The learned Government Advocate appearing for the respondent
submitted that on the complaint of P.W.1, FIR was registered and thereafter
investigation was conducted by P.W.7, who examined the witnesses. P.W.1
along with the complaint/Ex.P1 submitted the relevant documents Ex.P2 and
Ex.P3/letters received from the Director of Technical Education confirming
that the petitioner with registration No.315484 had not cleared the Accounts
Test. Further, in Ex.P3 the names of the nine persons who have passed the
examination and their particulars are given, in which the petitioner's name
found missing which confirms that Ex.P4/certificate is forged. P.W.2, who
was the Deputy Commissioner, Commercial Taxes, Erode at the time when
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Crl.R.C.No.238 of 2017
the petitioner was working as the Assistant Commercial Tax Officer at
Sathyamangalam, was directed to lodge a complaint, after getting opinion
from the Public Prosecutor informed that the complaint to be lodged only by
the Assistant Commissioner, Vellore. P.W.3 had clearly stated about the
verification of certificates of 11 persons and the petitioner's certificate was
found to be forged. P.W.4 is the Assistant Commissioner [Incharge],
Vellore at the time when the petitioner submitted the certificate/Ex.P4 along
with the covering letter and the same recorded in the Service Register. Thus,
the petitioner submitted the certificate/Ex.P4 is confirmed. P.W.5 is the
Assistant Commissioner, Vellore who confirms that on the recording of the
petitioner clearing the Accounts Test, he became eligible to be promoted as
Assistant Commercial Tax Officer and the Commissioner of Commercial
Taxes, by proceedings dated 12.10.2006 issued the promotion order to the
petitioner. P.W.6 is the Regional Officer of the Technical Education
Department who confirms that Ex.P2 and Ex.P3 were issued by his office
after verifying Ex.P4 with the register. P.W.6 further states that earlier
request was received from the Commercial Tax office for verifying 11
certificates, all were verified and the petitioner's certificate was found to be
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Crl.R.C.No.238 of 2017
forged. There is no reason to doubt the evidence of P.W.6, a public servant.
P.W.7 and P.W.8 are the Investigating Officers, who conducted
investigation, on conclusion of investigation filed a final report and produced
the witnesses before the Trial Court. The Trial Court on the evidence of the
witnesses and the materials produced rightly convicted the petitioner. He
further submitted that the petitioner being employed in a Government
Department, produced a document claiming that he had passed the Accounts
Test and now taking a technical defence that the covering letter produced
along with the certificate not produced. The petitioner not taken any steps to
file any petition for summoning the covering letter and also the registers
available with the Director of Technical Education and now attempts to take
advantage of the same. The Trial Court finding that the burden of proving
the fact under Section 106 of the Indian Evidence Act, 1872 is with the
petitioner and further under Section 114, adverse inference was drawn
against him and hence, convicted the petitioner. He further submitted that
the reasoning given by the Courts below are proper and needs no
interference. Hence, he prayed for dismissal of this petition.
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Crl.R.C.No.238 of 2017
8.Considering the submissions made and on perusal of the materials
placed before this Court, it is seen that the petitioner was employed as
Assistant in the Commercial Tax Office, Ranipet. He produced a
certificate/Ex.P4 on 04.08.2000 claiming that he passed the Departmental
examination in Accounts, based on the certificate produced by the petitioner
entries were made in his Service Register and later, the petitioner was
promoted as Assistant Commercial Tax Officer on 27.10.2006. At that time,
certificates of 11 persons including the petitioner was sent for verification to
the Director of Technical Education on 24.01.2007. On 13.02.2007, a
communication Ex.P3 disclosed that certificates of 9 persons found to be
genuine and certificates of two persons found to be forged, one of the
certificate is that of the petitioner. Thereafter, complaint was lodged on
19.03.2013 along with the letters received from the Technical Education
Department. P.W.2 and P.W.3 state about the service and postings of the
petitioner and nothing more. P.W.4 is the important witness to whom the
petitioner submitted the certificate/Ex.P4 which now turned to be forged.
Ex.P4 is the certificate issued by the Technical Education Department.
Normally, these certificates are sent through post to the concerned
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Crl.R.C.No.238 of 2017
candidates. The specific case of the petitioner is that the petitioner
submitted the certificate/Ex.P4 along with the covering letter and postal
cover, P.W.4 admits that the certificate/Ex.P4 was submitted by the
petitioner along with covering letter but the same not available in the Service
Register. The Service Register is an important document which is to be
maintained with proper care. It is the responsibility of the concerned officer
to maintain and keep the Service Register properly with safety. It is an
important primary document for all Government servants wherein from the
date of joining his duty till his retirement, all his service particulars, conduct
and receipt of any communication are recorded and maintained in the file.
The other witness, P.W.6 who is the Regional Officer, Directorate of
Technical Education confirms that Ex.P2 and Ex.P3 were issued by his
Department. From Ex.P2 it is seen that the petitioner secured less marks
and had not passed the Accounts Test and in Ex.P3, the list of nine persons
whose certificates found to be genuine are provided. Ex.P4 is the certificate
of the petitioner wherein it is shown that the petitioner had passed the
Accounts Test. In comparing Ex.P4 with Ex.P2, it is seen that in Ex.P2
there is no mention about the serial number of the Certificate JEG051112.
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Crl.R.C.No.238 of 2017
P.W.6 does not state that Ex.P4 was not issued by the Department of
Technical Education, he only states that the result found in Ex.P4 is not
genuine and in all other aspects, Ex.P4 is not disputed.
9.Added to it, P.W.6 submits that Ex.P2 was issued on verifying
Ex.P4 with the registers available in the Technical Education Department.
Strangely the register or its copy not produced. P.W.6 admits that if the
Prosecution or the Court summons, the same can be produced and for what
reason, no steps taken to produce the same is not known. In view of not
disputing Ex.P4 except for the result, then how come Ex.P4 had reached the
petitioner is also not known. P.W.7 and P.W.8, Investigating Officers admit
that they have not taken any steps to verify the genuineness of Ex.P4 since
already Commercial Tax Office had taken steps and collected Ex.P2 and
Ex.P3, on completion of investigation, charge sheet filed. This reasoning
and the answer is not proper. It is the duty of the Investigating Officer to
verify the documents with records personally or summon the same during
investigation, thereafter get opinion if needed and to find out how Ex.P4
reached the hands of the petitioner and the person who made correction at
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the Office of the Director of Technical Education. All these aspects not
considered and it has been glossed over. The Trial Court given a finding
that the burden of proof is on the accused especially when it is within the
knowledge, as per Section 106 of Indian Evidence Act is not proper.
Likewise, drawing adverse inference as per Section 114 of the Act is not
proper on the facts and circumstances of this case. The certificate was
produced along with the covering letter and postal cover, is admitted by
P.W.4 and the said letter is not available now. Withholding of vital facts is
due to the laxity in the investigation by the Investigating Officer, who failed
to take steps during investigation with the personnels of Director of
Technical Education to find out as to who generated Ex.P4 and how it was
despatched to the petitioner. These vital facts and laxity not considered by
the Courts below and on the other hand, convicted the petitioner shifting the
burden on the petitioner. It is the duty of the prosecution to prove the case
beyond all reasonable doubt. In this case, they miserably failed to do so. In
view of the same, this Court is inclined to set aside the conviction passed by
the Trial Court which was confirmed by the Lower Appellate Court.
10.Accordingly, the order of conviction passed by the learned Judicial
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Magistrate No.2, Vellore in C.C.No.393 of 2015 dated 26.04.2016 which
was confirmed by learned Principal District and Sessions Judge, Vellore in
C.A.No.25 of 2016 dated 03.10.2016 are hereby set aside. The petitioner is
acquitted of all the charges levelled against him.
11.In the result, this Criminal revision petition is allowed.
27.05.2022
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes/No
cse
To
1.The Judicial Magistrate No.2,
Vellore.
2.The Principal District and Sessions Judge,
Vellore.
3.The Inspector of Police,
Vellore District Crime Branch,
Vellore.
4.The Public Prosecutor,
High Court, Madras.
M.NIRMAL KUMAR, J.
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Crl.R.C.No.238 of 2017
cse
Pre-delivery order made in
Crl.R.C.No.238 of 2017
27.05.2022
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