Allowed

Mohd. Arif Ahmad v. State of Chhattisgarh

Chhattisgarh HC5 Oct 2021CRR/487/2021

Case brief

AI extract

What is this about?

This criminal revision allowed a challenge to the framing of a charge under Section 477-A IPC. The High Court held that the essential ingredient of intent to defraud was not established as the rectification of the roll number was done by a teacher, not the applicant.

What did the court decide?

The order framing charge under Section 477-A IPC dated 15.01.2018 is set aside and the applicant is discharged from the charge.

Mohd. Arif Ahmad Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Revision No. 487 of 2021

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Mohd. Arif Ahmad, S/o. Mohd. Rafiq Ahmad, Age – 27 years, R/o – Ramnagar, Infront of Sparsh Hospital, Supela, Bhilai, Distt. Durg (C.G.)

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---- Applicant

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Versus

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State of Chhattisgarh, Through : Police Station Officer, P.S. - Supela, Dist Durg (C.G.)

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----Respondent

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For Applicant : Ms. Reena Singh, Advocate For Non-applicant : Mr. Vaibhav K. Agrawal, PL

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Hon'ble Shri Justice N.K. Chandravanshi

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Order On Board

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05.10.2021

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(1) This revision has been preferred against the order dated 15.01.2018 passed by Third Additional Sessions Judge, Durg in Sessions Trial No. 13/2017 whereby charge under Section 477-A of the Indian Penal Code (henceforth “IPC”) has been framed against the applicant.

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(2) Facts of case leading to filing of this revision are that Shailja Sharma (the deceased), aged about 17 years, who was studying in XI Standard, committed suicide by jumping before a running train on 9.3.2016. A crime was registered against the Applicant. The allegations against the Applicant are that Shailja Sharma was a student of XI Standard and examination of Class XI was going on. On 19.02.2016, examination of Accountancy paper of commerce subject was fixed and the roll number of Shailja Sharma was 111213 which was allotted to her by the school management. Another student namely, Simranjeet Kaur was allotted Roll No.111215. On 19.2.2016, at the time of examination, Shailja Sharma entered the

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room of the examination prior to her classmate Simranjeet Kaur and sat on the seat of Simranjeet Kaur. Thereafter, Simranjeet Kaur also entered the room and saw that Shailja Sharma was sitting on her seat. On her objection, the applicant, who was a supervisor of the examination, asked Simranjeet Kaur to sit on the vacant seat, which was actually the seat of Shailja Sharma. It is further alleged that after the examination, when, according to the allotted roll numbers, the answer-sheets were collected by the Applicant, he found that there were two answer-sheets of same Roll No. 111215. Thereafter, on being directed by the Applicant, a teacher, namely Nandita Ghosh cut the Roll No. 111215 in the answer-sheet of Simranjeet Kaur and substituted the said roll number by Roll No. 111213, which was originally alloted to Shailja Sharma. When the answer-sheets were evaluated, answer-sheet bearing Roll No.111213, which was allotted to Shaija Sharma got only 16 marks and thus Shailja Sharma failed in the examination and as a result thereof, Shailja Sharma committed suicide by jumping before a running train on 9.3.2016. On completion of the investigation, a charge-sheet was filed against the Applicant for an offence punishable under Section 306 of the Indian Penal Code (henceforth “IPC”). Charge against the applicant under Section 306 of IPC was framed by Additional Sessions Judge.

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(3) By filing Criminal Revision No. 903 of 2018, the applicant had challenged the charge under Section 306 of the IPC framed against him, wherein vide order dated 19.03.2019, Co-ordinate Bench of this Court, set aside the order of framing aforesaid charge and discharged the applicant from the above-said charge. When aforesaid revision petition was pending before the High Court, in between, on the application under Section 216 of the CrPC filed by the prosecution before Additional Sessions Judge for framing charge under Section 477A of IPC also against the applicant, after hearing both the parties, the same was allowed and vide order dated 15.01.2018, charge under Section 477A of the IPC was also framed / added against the applicant. Hence this revision by the Applicant.

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(4) Learned counsel for the Applicant would submit that from the evidence collected by the prosecution, necessary/requisite ingredients for framing charge

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under Section 477A of the IPC are not available against the applicant because prosecution witnesses have stated in their statements that deceased Shailja Sharma herself was sat on the seat of Simranjeet Kaur and she herself had written wrong roll number in her answer-sheet, which was corrected later on. She would further submit that evidence collected by the prosecution itself shows that applicant was not acquainted with Shailja Sharama (the deceased) or her classmate Simranjeet Kaur from before, therefore, there is no reason on the part of the applicant to harm Shailja Sharma and give benefit to Simranjeet Kaur by changing the alleged roll numbers. She would next submit that for framing charge under Section 477-A of the IPC, it is necessary that alleged falsification would have been done “wilfully and with intent to defraud” but this ingredient is miserably lacking in this case, despite that the court below without considering the aforesaid facts, has famed the charge under Section 477-A of the IPC against the applicant, which is erroneous and illegal and, therefore, the same is liable to be set aside.

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(5) Per contra, learned counsel for the State would support the impugned order of framing charge against the applicant under Section 477-A of IPC submitting that it does call for any interference of this Court.

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(6) I have heard learned counsel for the parties and perused the records of criminal revision which contains copy of entire charge-sheet.

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(7) At the outset, it is the case of the prosecution itself, that both the students namely, Shailja Sharma and Simranjeet Kaur had written same roll number i.e. 111215 in their answer sheets. Roll No. 111215 was alloted to Simranjeet Kaur, thereby, she has not mistaken in writing her roll number in her answer-sheet. Thus, it is clear that Shailja Sharma had written wrong roll number i.e. 111215 in her answer-sheet instead of roll number 111213, which was alloted to her. As per statement of teacher – Nandita Ghosh, who was on duty with the applicant on 19.02.2016 on the examination room, while arranging the answer-sheets, she found two answer-sheets of same roll number i.e. 111215, and on being told by her about this fact, applicant directed her to substitute Roll No. 111215 to 111213 in the answer-sheet, which is after answer-sheet carrying Roll No. 111212, therefore, she

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had substituted the roll number. This fact shows that alleged correction had not been done by the applicant.

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(8) Teacher – Nandita Ghosh, who was on duty in that room on 19.02.2016 and students namely, Ku. Suruchi Sahu, Ku. Simranjeet Kaur have stated in their statements recorded under Section 161 of Cr.P.C. that on 19.02.2016, Shailja Sharma herself sat on the seat of Simranjeet Kaur. They have also stated that on 22.02.2016 i.e. on the date of paper of business study also, Shailja Sharma had sat on the seat of Simranjeet Kaur. (9) Teacher – Reeta Mishra, who was on duty on that day, has also reiterated the same facts. She has also stated that on 22.02.2016 also Shailja Sharma not only sat on the seat of Simranjeet Kaur but in her answer-sheet also, she had written Roll No. 111215, which was alloted to Simranjeet Kaur. She has also stated that while checking of copy in the room, she had corrected her roll number, that was 111213 in her answer sheet and when she demanded her admit card for checking, she told that she had not brought her admit card.

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(10) Aforesaid statements of students and teachers would show that on 19.02.2016 Shailja Sharma not only sat on the seat of Simranjeet Kaur but also she herself had written wrong roll number i.e. 111215 in her answer-sheet instead of Roll No. 111213, which was alloted to her. Statement of witnesses also reflect that such act had also been done by her on 22.02.2016 and on that day Teacher Reeta Mishra had corrected the roll number from 111215 to 111213 in her answer-sheet. If Shailja Sharma would have written Roll No. 111213 in her answer-sheet, which was alloted to her and that roll number would have been rectified by the Applicant, then it can be assumed that such modification has been done to harm her but when she herself has written wrong roll number in her answer-sheet, then such assumption does not arise.

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(11) At this stage, it is appropriate to look into the provisions of Section 477-A of the Indian Penal Code, which run thus:

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“477A. Falsification of accounts. —Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

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Explanation.—It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed.]

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(12) Thus, Section 477-A of the IPC has three ingredients, which run as follows:

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that at the relevant point of time, the accused should be a clerk or officer or servant or acting in that capacity;

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that he should destroy, alter, mutilate or falsify any book, electronic record, paper writing, valuable security or account, which belongs to or was in the possession of his employer and

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the act should have been done wilfully and with an intention to defraud.

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(13) In the matter of S. Harnam Singh v. The State (Delhi Admn.)1, their Lordships of the Supreme Court considered the import of provisions contained in Section 477-A IPC in paragraphs 17 & 18 of the judgment, which read as under :-

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“17. The existence of the third ingredient has been the subject of serious controversy. The question is: Did the appellant make these entries "wilfully and with intent to defraud"?

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1 (1976) 2 SCC 818

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"Wilfully" as used in Section 477-A means "intentionally" or "deliberately." There can be no difficulty in holding that these entries were made by the appellant wilfully. The appellant must have been aware that the Divisional Superintendent had by an order prohibited the booking of this class of goods via Barabanki from and on January 11, 1967. But from the mere fact that these entries were made wilfully. It does not necessarily follow that he did so "with intent to defraud" within the meaning of Section 477-A, Penal Code . The Code does not contain any precise and specific definition of the words "intent to defraud." However, it has been settled by a catena of authorities that "intent to defraud" contains two elements viz., deceit and injury. A person is said to deceive another when by practising "suggestio falsi" or "suppressioveri" or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. Injury has been defined in Section 44 of the Code as denoting "any harm whatever illegally caused to any person, in body, mind, reputation or property.”

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(14) The principles of law laid down by the Supreme Court in the afore-cited case are that there should be a willfil act of an accused with an intention to defraud. So, both elements must be present and in other words it would mean that the act should be a willful act and should also be done with an intention to defraud. While trying to define “intent to defraud”, the Court noted it contains two elements, deceit and injury.

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(15) In the present case, material available with the charge sheet does not show that applicant had any intention to harm Shailja Sharma or he had any grudge with her. There is nothing in the charge-sheet, on the basis of which, it can be considered that alleged substitution of the roll number was done with intent to defraud by the applicant, that too, when he himself had not substituted the roll number because it was rectified by Teacher Nandita Ghosh. If the applicant would have any intent to defraud by the alleged act, then he himself could have done the alleged rectification but he had not done so, therefore, prima facie, third ingredient of Section 477-A of IPC does not attract / fulfil in the instant case for framing charge under Section 477-A of IPC against the applicant.

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Therefore, charge under Section 477-A of the IPC is not made out against the applicant.

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(16) Consequently, the revision is allowed. The impugned order dated 15.01.2018 framing charge against the Applicant under Section 477-A of the Indian Penal Code is set aside. The Applicant is discharged from the charge under Section 477-A of the Indian Penal Code.

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Sd/-

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(N.K.Chandravanshi) Judge

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D/-

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Mohd. Arif Ahmad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Mohd. Arif Ahmad v. State of Chhattisgarh

Case brief

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What did the court decide?

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