Mohd.Qameruddin Ansari v. K.Yadaiah

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE Nos.3286 and 3344 of 2016 COMMON ORDER :

These two revisions are maintained by the de facto complainant of C.C.No.258 of 2002 on the file of the learned Judicial Magistrate of First Class, Kodangal. 2.

There were four accused in the said C.C. in which cognizance was taken for the offences punishable under Sections 420 and 467 I.P.C., which is outcome of Crime No.67 of 2002 of Kodangal Police Station on the report of the de facto complainant (revision petitioner). The trial Court after full dressed trial from the evidence on record that of PWs.1 to 4 and Exs.P1 to P4 with no independent evidence of accused oral or documentary but for tested PWs.1 to 4 by cross examination, found A1 to A4 guilty for the offences under Sections 420 and 467 I.P.C. and convicted them to undergo Rigorous Imprisonment of two years with fine of Rs.2,000/ - In default to undergo two months Simple Imprisonment under Section 420 I.P.C. and also sentenced to undergo Rigorous Imprisonment of two years with fine of Rs.

2,000/ - in default to undergo Simple Imprisonment for two months for the offence under Section 467 I.P.C. by giving the benefit of set off period undergone under Section 427 Cr.P.C. and both the sentences to run concurrently under Section 428 Cr.P.C. vide judgment dated 02.07.2011. Impugning the same, A1 maintained Criminal Appeal No.67 of 2011 and A2 to A4 maintained Criminal Appeal No.64 of 2011.

Sessions Judge (F.T.C.), Mahabubnagar, vide common judgment dated 15.09.2016 disposed of both appeals, having scanned the legal position with reference to the facts from the evidence brought on record by holding that only Section 471 I.P.C. is applicable for lis. Ex.P2 forged document as if genuine before the Court of Junior Civil Judge, Kodangal, in O.S.Nos.39 and 40 of 2002 from his filing in placing reliance on the forged documents knowingly; so far as A1 concerned, no other offences either under Sections 420 or 465 or 467 I.P.C. that attract and so far as A2 to A4 are concerned no offence either under Section 420 or 467 much less 471 I.P.C. that attracts, consequently, the conviction judgment of the trial Court is modified only so far as A1 for the offence under Sections 420 and 467 I.P.C into one under Section 471 I.P.C.

and the two years Rigorous Imprisonment each for the offences under Sections 420 and 467 I.P.C. is reduced to one year for the offence under Section 471 I.P.C. and acquitted totally by allowing Criminal Appeal No.64 of 2011 of A2 to A4 by dismissal of Criminal Appeal No.67 of 2011 of A1 to that extent by allowing in part and not only the sentence of two years Rigorous Imprisonment modified to one year Rigorous Imprisonment and also fine of Rs.2,000/ - reduced to Rs.1,000/ -. It is said common appellate Court' s judgment respectively of A1 to A4 covered by two revisions, maintained by the de facto complainant in impugning the same. 3.

Learned counsel for the revision petitioner/ de facto complainant in two revisions arisen from the factual matrix referred supra argued that the lower appellate Court went wrong in brushing aside the evidence and conclusions arrived by the trial

Court from the evidence on record with reference to fact and law in rightly convicting A1 to A4 for the offences punishable under Sections 420 and 467 I.P.C. with two years Rigorous Imprisonment and fine respectively and there are no grounds to modify the sentence of A1 from the offences under Sections 420 and 467 to 471 I.P.C. or totally acquitting A1 to A4, so that the revisions are to be allowed by confirming trial Court conviction judgment setting aside the modified judgment of the lower appellate Court's reversal judgment in impugning sufficiency of sentence of A1 and against acquittal of A2 to A4.

4.

Whereas, the learned counsel for the respective accused as respondents to the two revisions submitted that the impugned common judgment of the appellate Court is right in all respects, scanning the law on fact, with reference to evidence on record and for this Court while sitting in revision within the limited scope, there is nothing to interfere.

5.

Heard and perused the material on record.

6.

From the evidence on record of PWs.1 to 4, there is nothing to show, who forged the document in question. There is nothing to show any of the accused including A1 as PW.1 in O.S.No.39 and 40 of 2002 on the file of the Junior Civil Judge, Kodangal, created the document with an intent to cheat as beneficiary of the document, otherwise, much less, using as genuine and forged document to cheat, to attract either Section 467 or 468 I.P.C. A2 to A4 are no way shown beneficiaries in the two suits much less to use either to cause any wrongful loss or gain respectively. Thus, the offence

under Section 420 or 467 or 468 I.P.C. no way, thereby, attracts against any of the accused.

7.

Even coming to A2 to A4 are concerned, to attract any offence, there is nothing to show even they utilized as if genuine and forged document or a document knowingly a forged one under Section 471 I.P.C. but for that of A1 as PW.1 in the two suits as referred supra. The lower appellate Court there from rightly concluded of neither of the offences under Sections 420 or 467 or 468 I.P.C. that attracts and so far as A1 concerned only 471 I.P.C. that attracts and so far as A2 to A4 concerned even Section 471 I.P.C has no application.

8.

Coming to the argument in the course of revision by the learned counsel for the revision petitioner that once they are the attestors of the document, they are liable equally for any of the offences referred supra, a three Judge Bench of the Apex Court in M.L.Abdul Jabbar Sahib v. H.Venkata Sastri and Sons and Others1 with reference to Section 3 of the Transfer of Property Act and Section 59 of the Registration Act observed that mere attestation in the absence of attributing knowledge to the contents of the documents to the so called attestor does not give any inference or presumption of the attestor know the contents of the document. Once that is the legal position, from the three Judge Bench expression of the Apex Court referred supra and there is no positive evidence that they got knowledge of the contents in attesting the document, mere attestation does not mulk them with any criminal liability.

1 AIR 1969 SC 1147

9.

Having regard to the above also, the lower appellate Court is right in its conclusion in finding the altered sentence only for the offence under Section 471 I.P.C. rather than 467 or 420 I.P.C. 10.

Now, coming to the sufficiency of sentence, so far as A1 is concerned, for the offence under Section 420 I.P.C the punishment is seven years and/ or with fine. Whereas, for the offence under Section 471 I.PC.. it is as if a forged document provided in 465 I.P.C. i.e., upto two years or fine or both. Even the trial Court's conviction judgment for the offence under Section 467 I.P.C. which provides with punishment upto maximum of ten years with or without fine, each two years Rigorous Imprisonment. Once such is the case, from the proportionality on the propensity of the crime concerned, from the finding arrived by the lower appellate Court referred and discussed supra, one year Rigorous Imprisonment for the offence under Section 471 I.P.C. which provides maximum two years, also with fine of Rs.1,000/ - with default sentence is just and sufficient for no way a lesser one, much less to enhance. 11.

Accordingly and in the result, both the Criminal Revision Cases are dismissed confirming the common judgment dated 15.09.2016 in Criminal Appeal Nos.67 and 64 of 2011 passed by the II Additional District & Sessions Judge (F.T.C.), Mahabubnagar. 12.

Miscellaneous petitions, pending if any, shall stand closed. _________________________ Dr. B. SIVA SANKARA RAO, J Date:04-04-2017 pab