Afr Jagannath Parida vs State Of Odisha
2022 Latest Caselaw 3271 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRREV No. 378 of 2000

       An application under Section 397 read with Section 401 of
       the Code of Criminal Procedure, 1973.
                                 ---------------
AFR    Jagannath Parida                       ......         Petitioner

                             -Versus-

       State of Odisha                      .......         Opp. Party

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner      :     M/s. S.K. Mund, D.P. Das, J.K.
                                   Parida, S.K. Joshi &
                                   S. Mohapatra, Advocates

          For Opp. Party     :   Mr. S.K. Mishra,
                                 Addl. Standing Counsel
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

14th July, 2022

SASHIKANTA MISHRA, J.

The petitioner was convicted for the

offence under Sections 420/468/471 of IPC by learned

J.M.F.C., G. Udayagiri in G.R. Case No. 19 of 1994 and

was sentenced to undergo Rigorous Imprisonment (R.I.)

for 3 years for the offence under Section 468 IPC, R.I. for a

period of 3 years under Section 420 IPC and to pay a fine

of Rs. 500, in default, to undergo R.I. for one month more

and for a period of 6 months under Section 471 of IPC

with all the sentences directed to run concurrently vide

judgment dated 16.11.1998. The said judgment of

conviction and sentence was confirmed by learned

Sessions Judge in C.R.A. No. 39 of 1998 as per judgment

passed on 24.06.2000.

Being further aggrieved, the petitioner has

preferred the instant revision.

2. The prosecution case, briefly stated, is that a

complaint was received by the Director, Elementary

Education, Odisha, Bhubaneswar from some persons that

the petitioner had utilized forged H.S.C. Board Certificate

and Secondary Teachers Training Pass Certificate to get

employment as a teacher. The matter being enquired, it

was found that neither the H.S.C. Board Certificate nor

the Secondary Teachers Training Certificate had been

issued by the respective Board/Institutes. Accordingly, an

FIR was lodged before Raikia Police Station by the District

Inspector of Schools, Phulbani on 22.01.1994. Upon

completion of investigation, charge-sheet was submitted

against the accused for the aforementioned offences and

he was put to trial.

The accused took the plea of denial.

3. Prosecution, in order to prove its case

examined 20 witnesses and exhibited 27 documents. The

defence did not adduce any evidence, either oral or

documentary. After scanning the evidence in detail, the

trial court held that the alleged offences were clearly

proved inasmuch as it was reflected in the service book of

the petitioner that he had entered into service stating that

he had passed the HSC and CT examinations. It was also

found that the petitioner had used the certificates in

question knowing the same to be forged and had thus

used the same dishonestly and cheated his appointing

authorities by inducing them to believe the said

certificates to be true and genuine thereby inducing them

to appoint him as a teacher. In appeal, learned lower

appellate court also independently scanned the oral and

documentary evidence on record but found no reason to

interfere with the impugned order of conviction and

sentence. The contentions raised on behalf of the

petitioner were considered and negatived as the lower

appellate court also found that the petitioner had used the

forged certificates for getting appointment as Assistant

Teacher in 1980.

Challenging both the judgments as above, the

petitioner has approached this Court in the instant

revision.

4. Heard Mr. S.K. Mund, learned counsel for the

petitioner and Mr. S.K. Mishra, learned Addl. Standing

Counsel for the State.

5. Assailing the impugned judgments, Mr. Mund

contends that the basic ingredients of the alleged offences

were not proved and therefore, the finding of guilt is liable

to be interfered with. Elaborating his argument, Mr. Mund

contends that there is no evidence on record to show that

the certificates, which were marked as Exhibits-15 and

16, were produced by the petitioner. It is further

contended that there is no evidence that the said

documents were forged documents. According to Mr.

Mund, unless the prosecution is able to clearly prove that

the petitioner had forged the documents in question and

had produced them before the appointing authority at the

relevant time and thereby utilized the same to get

appointment, he cannot be held guilty of the alleged

offences. It is further contended that both the courts

below have ignored this vital aspect, i.e., absence of proof

that Exhibits-15 and 16 were produced by the petitioner

before the appointing authority at the relevant time.

Moreover the manner of proof of certain documents like

the Tabulation Register, which was utilized against the

petitioner, is contrary to the law of evidence and therefore,

should not have been considered by the court below.

6. Per contra, Mr. S.K. Mishra has contended

that there is clear evidence that the petitioner had

declared himself to have passed H.S.C. as also C.T.

examination which is duly reflected in his service book. It

has also been proved that the certificates in question

namely, Exhibits- 15 and 16 are forged documents

inasmuch as they do not belong to the petitioner but to

some other students.

7. In view of the contentions put forth on behalf

of the petitioner, it becomes necessary to examine whether

the prosecution was successful in proving the essential

ingredients of the alleged offences. As already stated, the

petitioner was charged for the offence under sections

420/468/471 IPC. The said offences are as follows:

"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

468. Forgery for purpose of cheating.-- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such 5 [document or electronic record."

So, to bring home a charge under Section 420

IPC, prosecution is required to prove that the petitioner

delivered/produced two certificates at the time of his

joining (Exhibits -15 and 16) which were acted upon by

the appointing authority in giving him appointment as

Assistant Teacher. It is well settled that the deception

referred to in Section 420 of IPC may be by conduct or

implied in the nature of the transaction itself. Reference in

this regard may be had to the decision of the apex court in

the case of Ram Narayan Popli v. CBI, reported in

(2003) 3 SCC 641.

As regards the offence under section 464,

punishable under Section 468 of IPC, as already

discussed hereinbefore, to bring the offence within the

four corners of the Section, the false document must be

proved to have been created with a view to making it

appear that it was made by some person other than the

person who, the accused knows, did not make it. In other

words, the first essential is that the accused should have

made a false document and with the intent to cause

damage or injury to the public or to any class of public or

to any community. Reference may be had to the case of

Ram Narayan (supra). According to the prosecution, the

accused forged the documents marked Exhibits 15 and 16

to make them appear as if they had been issued by the

Board of Secondary Education and Secondary Teachers

Training Institute.

Section 471 requires that the person

concerned must have 'knowledge' or have 'reason to

believe' that the document in question was forged or not

genuine before using it for his own benefit. According to

the prosecution, the accused had not passed H.S.C. or

C.T. examinations and yet, produced two forged

certificates at the time of his appointment to show as if he

had passed the said examinations.

8. The facts of the case now need to be

examined in light of the above legal propositions. However,

one aspect needs to be clarified at the outset. It is well

settled that the onus of proof that the accused brought

forth a forged document with a view to cheating, would

rest with the prosecution and highly suspicious conduct

cannot replace the need of positive proof. Further, the

onus of proof of the existence of every ingredient of the

charge always rests with the prosecution which never

shifts.

9. The prosecution case is that the accused

utilized H.S.C. and C.T. certificates and obtained

appointment as Assistant Teacher though he had neither

passed the H.S.C. examination nor the C.T. examination.

To prove this, prosecution examined several witnesses and

proved several documents. It is brought out in the

evidence that the documents in question, namely,

Exhibits-15 and 16, which are certificates purportedly

issued by the Board of Secondary Education and

Secondary Teachers Training Institute respectively, do not

actually belong to the petitioner as the certificates of the

same number were issued in respect of some other

persons. Prosecution has proved the Tabulation Register

through an official of the Board of Secondary Education,

namely, P.W.- 19, which shows that the certificate marked

Exhibit-15 was issued in favour of one Lalatendu Sarangi.

Similarly there is evidence on record to show that Exhibit-

16 was issued in favour of one Sanjukta Pattnaik.

Prosecution has proved the service book of the petitioner,

wherein it is mentioned that he has passed the H.S.C. and

C.T. examination. Therefore according to prosecution, the

certificates marked Exhibits 15 and 16 were produced by

the accused at the time of his appointment for which

necessary entries were made in the service book.

There is no direct evidence on record to show

that the petitioner accused had produced the certificates

in question at the time of his appointment. As already

stated, prosecution has heavily relied upon the particulars

mentioned in the service book to contend that the accused

had produced the said certificates at the relevant time.

Obviously, a mere entry in the service book with regard to

educational qualifications cannot be treated as conclusive

proof of physical production of the certificates in question

by the person concerned. Neither any person employed in

the school in question at the relevant time was examined

nor was any other documentary evidence showing as to

what documents were submitted by the accused at the

time of his appointment produced during trial. How and

on what basis the service book entries were made has not

been shown. The trial court has relied upon the evidence

of P.W.- 1, P.W.- 3, P.W.- 11 and P.W.- 20 in this regard.

P.W.-1 is the D.I. of Schools but he has expressed

ignorance regarding submission of certificates by the

accused before the appointing authority. P.W.-3 is the S.I.

of Schools. He testified that the B.D.O. asked the accused

to produce his original certificates under a letter marked

Exhibit-8, copy of which was also marked to him.

Surprisingly, he further states to have received the

certificates in original as also the service book from the

B.D.O. and of sending the same to the D.I. of Schools. The

B.D.O. was examined as P.W.-11. He proved the letter

issued by him vide Exhibit-8 asking the accused to

produce the original certificates but has stopped short of

stating as to from which source he received the

certificates. In fact, he has stated nothing at all in this

regard and significantly, he does not say that he had

received the certificates from the accused. The original

certificates marked Exhibits-15 and 16 were seized by the

I.O. who was examined as P.W.- 20. Thus, who produced

the certificates in question before the B.D.O. remains

shrouded in mystery. It is not stated by either P.W.-3 or

P.W.- 11 that the accused had submitted the certificates

pursuant to the letter issued under Exhibit- 8. This is the

most vital link in the chain of circumstances that was

required to be proved conclusively to hold the accused

guilty. The trial court appears to have overlooked this vital

aspect and has gone on to hold that the accused used

Exhibits- 15 and 16 as genuine knowing the same to be

forged ones. As already stated, unless it is conclusively

shown that the accused had in fact produced the

certificates in question at the relevant time, then

regardless of the fact that the certificates have been

otherwise proved to be forged ones, if at all, cannot attract

the liability contemplated under section 471 of CPC. In

other words, even if it is proved that the certificates were

forged does not necessarily mean that they were utilized

by the accused knowing the same or having reason to

believe that the same were forged in order to acquire a

benefit for him.

10. In so far as the allegation of forgery is

concerned, prosecution has relied upon the Tabulation

Register of the Board of Secondary Education proved

through P.W.- 19 to show that the certificates in question

had been a issued in favour of some other students and

not the petitioner. As has already been discussed herein

before, unless it is shown that the petitioner had utilized

the said certificates to get appointment, mere proof of the

same being forged, particularly in the absence of any

evidence to show that the petitioner had any role to play

in the alleged forgery of the documents, the offence under

Section 464 of IPC punishable under Section 468 of IPC

cannot be said to be made out. For the same reason the

offence under Section 420 of IPC is also not made out. A

reading of the impugned judgments reveals that not only

the trial court but also the lower appellate court has fallen

into error in overlooking the fact that the vital link in the

chain of circumstances against the accused was missing.

In the absence of this vital link, the chain of

circumstances becomes incomplete for which the finding

of guilt basing thereon becomes vulnerable.

11. For the foregoing reasons therefore, this

Court has no hesitation in holding that the impugned

judgment of conviction and sentence passed by the trial

Court and that of the lower appellate court in confirming

the same cannot be sustained in the eye of law and are,

therefore, set aside. The accused petitioner is held not

guilty of the charge under Sections 420/468/471 IPC and

hence, acquitted therefrom. His bail bonds be discharged.

12. The CRREV is disposed of accordingly.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 14th July, 2022/ A.K. Rana