The Court dismissed the State's appeal against the acquittal of the respondent. The judgment held that the evidence was insufficient to prove charges of cheating and forgery after the reviewing court excluded the prosecution's case.
The criminal appeal filed by the State is dismissed, and the judgment below of acquittal is restored.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1458 OF 2003
The State of Maharashtra.Appellant
V/s.
Popat Shankar Palwe .Respondent Age:45 yrs, Occu:Service R/o. Trimbakeshwar Chauki Matha, Taluka & District:Nashik
Ms V.S.Mhaispurkar, APP, for the Appellant – State
Mr.V.V.Gangurde, Advocate, for the Respondent
CORAM: R.C.CHAVAN, J.
DATE : 10TH JULY, 2012
ORAL JUDGMENT
.This appeal is directed against acquittal of
the respondent ordered by the learned Additional
Sessions Judge, Nashik after setting aside
respondent's conviction recorded by the learned
Chief Judicial Magistrate, Nashik for the offences
punishable under Sections 420 & 468 read with
Section 511 of the Indian Penal Code. The learned
Chief Judicial Magistrate had sentenced the
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respondent to suffer rigorous imprisonment for a
period of one year with a fine of Rs.1000/- or in
default to suffer further rigorous imprisonment for
30 days which was set aside by the learned
Additional Sessions Judge, Nashik by his impugned
Judgment.
2.Facts which are material for deciding this
appeal are as under :-
The complainant Shri Jahagirdar, Deputy
Director of the Animal Husbandry Department
received an application from Shri Madhukar Shinde
reminding the department of his pending appointment
to the post of Milk Recorder. This surprised the
department, since the department had no documents
about appointing Madhukar Shinde to any such post.
The department, therefore, asked Madhukar Shinde to
produce necessary documents. Madhukar Shinde then
sent copies of the application as well as the
letters which he claimed to have received from the
department. First was a letter informing Madhukar
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Shinde that his appointment was being processed and
was awaiting a nod from the Secretary of Animal
Husbandry Department. The second letter informed
Madhukar that sanction had been received and his
appointment may be made in due course. Since the
department had not sent any such communication to
Madhukar, the Deputy Director Shri Jahagirdar filed
a report with the police against Madhukar Shinde.
Madhukar Shinde was arrested and then Madhukar
Shinde came up with a case which is the foundation
of this prosecution. Madhukar told the police that
he had been introduced to the respondent by one
Ratnakar tailor, who told him that the respondent
would help him getting a job. The respondent asked
him to send an application to the department.
Madhukar Shinde, accordingly, gave an application
to the respondent, who issued a receipt of his
application. The respondent then handed over a
letter to Madhukar Shinde stating that his
application had been forwarded to the higher
authorities. The respondent is alleged to have
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demanded a sum of Rs.2,000/- for processing the
matter further. Madhukar Shinde claims to have
paid a sum of Rs.1000/- in about three to four
months after he had received the first letter. Six
to seven months after the first instalment,
Madhukar Shinde again paid a sum of Rs.600/- and
ultimately paid a further sum of Rs.200/- leaving
unpaid balance of Rs.200/-. The respondent was
transferred to Mumbai from Nashik. Thereafter,
Madhukar received a letter from the department
which is at Exhibit 52 informing him that he had
been selected and he may wait for appointment
order. Madhukar Shinde was elated and contacted
the respondent, who told Madhukar to wait for
further communication from the department. As it
did not come up, as already stated, Madhukar wrote
to the department and then bubble burst.
3.In course of investigation, police recorded
statements of witnesses from the department as also
that of one Sanjay Sonawane in whose presence some
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amount was allegedly paid by Madhukar to the
respondent. They also obtained specimens of hand
writing and signature of the respondent as also the
specimen of type writing on department's type
writer. The specimen along with admitted and
disputed documents were sent to the experts. On
completion of investigation, charge sheet was sent
to the Court of Judicial Magistrate F. C., Nashik.
4.The learned Magistrate charged the respondent
of the offences punishable under Sections 420, 468
and 511 of the Indian Penal Code. Since the
respondent pleaded not guilty, he was put on trial.
The trial seems to have been eventually concluded
before the learned Chief Judicial Magistrate, who
convicted and sentenced the respondent as
aforementioned. The respondent preferred an appeal
before the Sessions Court which allowed the appeal
by the impugned Judgment.
5. I have heard the learned Additional Public
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Prosecutor for the State, who chose to question the
Judgment and Order of the learned Additional
Sessions Judge. I have also heard the learned
counsel for the respondent. With the help of both
the learned counsel I have gone through the
evidence on record. PW-1 Madhukar Babu Shinde is
the victim of alleged fraud played by the
respondent and states that as to how on the advice
of Ratnakar tailor he approached the respondent,
made an application to the Animal Husbandry
Department, made payments to the respondent,
received letters from the department and wrote
letters to the department. He admits that he was,
in fact, arrested by the police on the report of
Shri Jahagirdar, Deputy Director. He, however,
denied that he falsely implicated the respondent
because he had been arrested by the police. PW-2
Sanjay Madhukar Sonawane claims to have accompanied
PW-1 Madhukar Shinde when some payment was made to
the respondent. The witness is vague about the
date, time or place when the payment was made. He
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does not state the purpose for which the payment
was made or the amount which was paid in his
presence. However, towards the end of his
examination-in-chief possibly he was referred to
police statement. He then stated that the amount
was demanded after assuring that Madhukar would get
a job.
6.PW-3 Vasant Narayan Jahagirdar, the Deputy
Director had given a report at Exhibit 49. He
proved correspondence received by his office and
sent by his office. PW-4 Sau. Maya Shamrao Phalke
is another Deputy Director, who was examined for
getting a sample of type written document. PW-5
Dnyaneshwar Mahipati Gaikwad is a clerk in the
Animal Husbandry Department, who stated that he had
not scribed the letters at Exhibits 51 and 52. PW-
7 Mukund Dwarkanth Bhagwat, Deputy Director
identified Exhibit 61 to be in the hand writing of
the respondent. He denied his signatures on the
letters in question.
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7.PW-6 Prakash Narayan Kamble, PW-8 Ravindra
Mahadeo Nikalje, PW-10 Vishnu Chandar Deokar and
PW-11 Yatish Shrikrishna Pandit are panchas on
various panchanamas whereby documents, specimen
signatures and specimen writing were collected by
the police. Unfortunately all these witnesses in
their cross examination stated that they had only
signed panchanamas which were already scribed.
8.PW-9 ASI Popat Barku Kaloge recorded some of
the panchanamas. PW-12 ASI Ravindra Mahadeorao
Kulkarni recorded the report. Investigating
officer himself was not examined.
9.The learned Additional Public Prosecutor
submitted that the evidence tendered would clearly
shows that the respondent had promised to secure a
job for Madhukar Shinde and had demanded a sum of
Rs.2000/- and received Rs.1,800/- from Madhukar
Shinde. She submitted that but for the fact that
the department chose to ask Madhukar Shinde to
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produce all the correspondence, the mischief played
by the respondent would never have been brought to
light. According to her, the evidence of PW-1
Madhukar Shinde and PW-2 Sanjay Sonawane about the
demand and payment of money for the purpose of
getting a job is duly corroborated by the
circumstantial evidence provided by the witnesses
from the department and panchas in whose presence
the documents had been seized.
10.The learned counsel for the respondent, on
the other hand, submitted that there is nothing to
show that the respondent had anything to do with
the letters allegedly sent by the department to
Madhukar Shinde. He submitted that Madhukar
Shinde's allegation about the respondent having
demanded and received money surfaced only after the
witness was taken in custody and it is just
possible to save his skin or skin of someone else
Madhukar decided to make the respondent scape goat.
He also submitted that there is nothing to show
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that Madhukar, in fact, had various amounts for
being paid to the respondent as claimed by him. He
drew my attention to the observations of the
learned Additional Sessions Judge in this behalf.
As rightly pointed out by the learned APP, these
observations are thoroughly irrelevant and
unwarranted. Whether Madhukar had requisite sum
with him or not was not the matter of inquiry
before the learned Judge. Therefore, the learned
Judge should not have rested his finding about
absence of complicity of the respondent on the
foundation of Madhukar not having the requisite
scholarship amount with him.
11.All the same, the fact remains that but for
the allegation of Madhukar, supported vaguely by
PW-2 Sanjay Sonawane, there is nothing to connect
the respondent to the crime. Hand writing expert
or expert to whom samples of type writing from the
office of Deputy Director were sent have not been
examined for the reasons best known to the
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prosecution. Ambivalent evidence of panchas does
not help the prosecution in proving that any sample
of hand writing or signature were really taken
before being sent to the expert. As if this was
not enough, the prosecution also failed to examine
the investigating officer. Therefore, if the
evidence of PW-1 Madhukar Shinde, who seems to have
come out with the case implicating the respondent
only when he was in police custody, and that of PW-
2 Sanjay Sonawane is excluded, there is nothing to
indicate that the respondent had demanded or taken
any money or forged any letter for the department.
Ratnakar tailor, who is supposed to have introduced
Madhukar Shinde to the respondent has not been
examined. He would have been the best witness to
show that the respondent had promised Madhukar
Shinde that he would secure a job for Madhukar
Shinde. Given the nature of evidence which was
tendered at the trial, rather the nature of
evidence which was withheld at the trial, namely
that of hand writing expert, it cannot be said that
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the learned Judge erred in concluding that the
offence of cheating or forgery or attempting to
receive a sum of Rs.2000/- was not proved.
12.The appeal is, therefore, dismissed.
2 issues framed by the court
Whether the evidence was sufficient to sustain a conviction for cheating and forgery against the respondent.
Whether the High Court erred in permitting the Impugned Judgment which acquitted the respondent.
1 provisions across 1 enactments
The State of Maharashtra
Popat Shankar Palwe
R.C.CHAVAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court