Md. Abdul Hashim @ Hussain Vs the State of Assam

Heard Mr. B. Sinysit, learned counsel, appearing on behalf of Mr. M. K. Ali, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor, appearing for the State.

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2. The present criminal revision petition has been instituted assailing the Judgment and Order dated 04.03.2014 passed by the learned Additional Sessions Judge, Jorhat, in Criminal Appeal No.40/2010, upholding the conviction of the appellant under Section 417/511 IPC by the learned Judicial Magistrate 1^st Class, Jorhat, vide Judgment dated 27.10.2010, in G.R. Case No. 200/2002.

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3. The prosecution case in brief is that an FIR was lodged by one Nani Baruah, the then Joint Director of Food and Civil Supplies Department, Jorhat, on 11.03.2002, alleging that the petitioner, herein, had submitted an appointment letter dated 11.03.2002, allegedly issued from the Director’s Office. It was further stated in the FIR that the said appointment letter was purportedly issued by a Director namely S. N. Baruah, but as the name of the present Director was Jatin Gogoi, therefore the said appointment letter was found to be a manipulated one and accordingly, the FIR was lodged.

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The police on receipt of the said FIR registered Jorhat P.S. Case No.88/2002 under Sections 468/420 IPC. On conclusion of the investigation, the police laid a charge-sheet against the petitioner, herein, and 2(two) others under Sections 471/468/420 IPC.

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4. The learned Trial Court basing on the materials coming on record framed a charge under Sections 471/468/420 IPC against the petitioner, herein, and 2(two) others and the same on being read over and explained to them, they having pleaded not guilty and claimed to be tried, a Trial ensued in the matter.

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5. The prosecution during the Trial examined 7(seven) witnesses including the Investigating Officer. Thereafter the accused persons including the petitioner, herein, were examined under Section 313 CrPC. On conclusion of the Trial, the learned Trial Court i.e. the Court of the learned Judicial Magistrate 1^st Class, Jorhat, vide Judgment dated 27.10.2010, proceeded to convict the petitioner, herein, under Sections 471/417/511 IPC. On such conviction the petitioner was sentenced to undergo Simple Imprisonment for a period of 6(six) months and payment of a fine of Rs.3,000/-(Rupees three thousand only) in default to undergo Simple Imprisonment for another 1(one) month for the charge under Section 471 IPC. The petitioner was sentenced to undergo Imprisonment for 3(three) months for the charge under Sections 417/511 IPC, both the sentences were directed to run concurrently.

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Being aggrieved the petitioner assailed his conviction by the learned Trial Court by way of instituting an appeal, being Criminal Appeal No.40/2010, before the Court of the learned Sessions Judge, Jorhat.

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The matter was considered by the Additional Sessions Judge, Jorhat, and the learned Appellate Court upon considering the evidences coming on record was pleased by Judgment dated 04.03.2014 to dismiss the said appeal upholding the conviction of the petitioner. The learned Appellate Court upheld the conviction of the appellant under Sections

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471/511 IPC, however his conviction under Section 471 IPC was converted to that of under Sections 417/511 IPC and his sentenced was reduced to 3(three) months Simple Imprisonment. The conviction of the appellant under Sections 417/511 IPC was upheld. With the above modification the appeal was allowed.

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6. I have heard the learned counsel for the parties and perused the materials available on record.

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7. The learned Trial Court upon considering the evidences coming on record, had drawn the following conclusions against the petitioner, herein ;

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“25. What remains to be seen is whether accused Abdul Haşim dishonestly or fraudulently use the said document as genuine, which he knew or had reason to believe to be forged. We have the statement from the horse's mouth itself. Accused Abdul Hasim admitted using a false appointment letter for purpose of seeking employment in a 4th grade post in the office of Food and Civil Supplies, Jorhat, which he purchased for an amount of Rs. 15,000/from accused Safiquddin @ Bhai. It can, therefore, be held without any qualms that accused Abdul Hasim dishonestly used a false document as genuine, which he knew to be a forged one.

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Learned counsel for accused Abdul Hasim put forth the contention that in case of forgery, oral evidence is not sufficient and scientific evidence has to prove it. The report from FSL, Ext-4, stated that it was not possible to express a definite opinion about the authorship of the signature in

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question as the writings in question and the specimen provided were both by the same person. The instant case is not one where the signature of a Director of the Food and Civil Supplies Department was forged. This is a case where a false document was made, with a false signature of a person who never chaired the position of a Director of that department at all. Therefore, for the purpose of comparison to ascertain the truth, there cannot be any original or real specimen signature, whatsoever, of any Director by the name of S.N. Borah, who never existed at all. In this case, the entire document is a false one along with the name of the Director and his signature. It is not just the signature, it is the document itself which is false and forged. Hence, there need not be any scientific evidence to prove the forgery. Scientific evidence would have been required had the allegation been that the signature of the Director was forged. But that is not the allegation. The allegation is that a false document was produced, which was purportedly signed in the name of a false, fictitious person, which, therefore, led to the deduction that it was forged. Hence, scientific evidence is not required in a case such as this. Forensic experts prove forgery of a writing or a signature by comparing it with that of the original author. Here, the original author is a fictitious person. Therefore, the question of forgery in this case revolves around making a false document per se and not around copying the writing or signature of a Director who actually happened to chair that position. Hence forensic opinion is not deemed necessary. For that matter, we also have a much acknowledged case of

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Mallinath Ambanna Shedjale -v-Purushottam Vasudev Somshetty, reported in 2002 CrLJ) 506 (Bom), where, in a case of forgery on partnership registration form, it was held that the mere fact that the handwriting expert could not positively say who committed the forgery, the accused partners could not be acquitted.

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Learned counsel for accused Abdul Hasim argued that PW3 stated that earlier there was one Director by the name of H.N. Borah. Hence, prosecution should have examined him to ascertain the truth, Without doing so, how could the prosecution come to a conclusion that the said letter was forged, he questioned. To my mind, such non-examination does not go to any benefit of the accused person for the very reason that there is no requirement of calling; a person with a different name to prove whether he Issued such a letter or not when the document itself does not mention his name. Secondly, the letter in question is dated 11-03-02, at which time the Director happened to be J. Gogol, ACS and not S.N. Borah. Hence, there is no lapse of prosecution if it did not examine an earlier Director by the name of H.N. Borah, as because on 11-03-02, when the letter was claimed to have been issued, H.N. Borah was not the Director and this fact is not in dispute.

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Learned counsel also put forward the argument that when an officer such as PW3 got the said false document, it is unlikely that he would give it back to the accused person to hold it and keep it until the arrival of the police. It is natural human tendency to keep such incriminating evidence in his own possession till such document is handed

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to the police. No officer would return it to the accused person, for the accused in such a case might tear it up and the evidence would be lost. Hence, the said letter, Mat Ext1, was not seized from accused Abdul Hasim, he argued. Be that as it may, we have all the witnesses to the seizure of the said document who stated that the said letter was seized from Abdul Hasim. The I/O also stated that he seized the letter from the said accused person. For that matter, the accused person himself admitted that the said letter was seized from him by the police. Therefore, there is no improbability that the letter was not seized from Abdul Hasim. In any case, if the letter was returned by PW3 to the accused person and he had the opportunity to tear it up but did not do so, such benefit would not go to the accused person.

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There has been no dishonest inducement of delivery of property in this case but from the facts and evidence it is clear that accused Abdul Hasim tried to deceive PW3 by dishonestly concealing the fact that the appointment letter was not issued from the rightful authority genuinely and thereby attempted to deceptively induce PW3 to do an act, i.e. give employment, which PW3 would not do if he were not so deceived. PW3 happened to see through the deception and did not fall in the trap but that does not absolve Abdul Hasim of an attempt to cheat, sufficient to warrant his conviction u/s 417, IPC read with sec. 511, IPC. As far as the other two accused persons are concerned, there is no evidence to show that they committed any offence u/s 420, IPC or 417, IPC or attempted to do so and

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hence, they cannot be held guilty under that charge…”

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8. Basing on the said conclusions the learned Trial Court proceeded to convict the petitioner, herein, under Section 471 IPC and 417 IPC read with Section 511 IPC, and sentenced him as noticed hereinabove.

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9. The learned Appellate Court in Criminal Appeal No.40/2010 upon re-appreciating the evidences coming on record had drawn the following conclusions ;

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“12] Now after the perusal of all the evidences and the statement of the accused under section 313 Cr.PC, it appears to be a proven and admitted fact that the appellant on the relevant date went with an forged appointment letter to the office of the Food and Civil Supplies Office for the purpose of his appointment in the said office.

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It further appears from the evidence of P.W 3 and P.W 7, who deposed that the appellant on being asked about the said letter told them that the letter was given to him by one Safiquddin @ Bhai at Rs.5000/ Rs 15,000/, and from the statement of accused appellant under section 313 Cr.pc wherein he admitted the fact that he took the forged appointment letter from the accused Safiquddin at Rs 15,000/ that the appellant knew the said appointment letter to be forged one.

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14] in the instant case the learned counsel for the appellant reiterated on the point that the appellant

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did not know the contents of letter and was unaware of the fact that the letter was forged. But after the perusal of all the materials on record, nowhere it appears that the appellant denied to have known the contents of the letter or stated that he did not know that the alleged appointment letter was forged. Rather the appellant in his statement under section 313 Cr.pc categorically admitted to take the forged appointment letter from Safiquddin one of the accused in the instant at Rs. 15.000/ It is a settled principle of law that the statement made in 313 Cr.pc is not a piece of evidence but can be taken into consideration while arriving at a conclusion.

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15] After the foregoing discussions it appears that the appellant knew the appointment letter to be forged when he gave the said letter to P.W3, Joint Director Food and Civil Supplies Department and tried to use the same for the purpose of his appointment. But it appears that when the appellant tried to use the said appointment letter by giving it to the P.W 3 then only P.W3 detected the same to be forged and the appellant failed in his attempt to use the same for the alleged purpose”

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10. Basing on the said conclusions, the learned Appellate Court convicted the petitioner, herein, as follows;

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“16) In view of the foregoing discussions, I am of the opinion that the appellant knowing the alleged appointment letter to be forged, attempted to use the

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same as genuine and therefore is guilty under section 471/511 IPC. Hence his conviction under section 471 IPC is converted into 471/511 IPC and accordingly his sentence under the said section is reduced to 3(three) months simple imprisonment. Conviction of the appellant under section 417/511 IPC is upheld.”

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11. This Court has carefully perused the conclusions drawn by the learned Trial Court as well as the learned Appellate Court in the matter. On a perusal of the conclusions so drawn in the light of the evidences coming on record, this Court finds that the conclusions so drawn by the learned Trial Court as well as by the learned Appellate Court are based on the evidences coming on record and no infirmity therein, is found. Accordingly, the conviction of the appellant in the matter would not mandate any interference by this Court.

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12. Having drawn the said conclusions, this Court notices that the learned Trial Court while proceeding to sentenced the petitioner, herein, had noticed the provisions of the Probation of Offenders Act, 1958, however the benefit thereunder was denied to be extended to the petitioner only by noticing the nature of the offence proved against him in the matter.

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13. This Court notices that the offence involved was committed by the petitioner in the month of March, 2002. 13(Thirteen) years have passed on since the date of commission of the offence by the petitioner, herein. It is found that the petitioner has been litigating the matter initially before the Trial Court, thereafter before the Appellate Court and presently before this Court in the present revision petition.

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14. Considering the long lapse of time occasioning in the matter as well as the nature of the offence established against the petitioner, this Court is of the considered view that the petitioner, herein, is entitled to be extended with the benefit under the provisions of the Probation of Offenders Act, 1958. Accordingly, while upholding the conviction of the petitioner as made by the learned Trial Court and the modification thereof made by the learned Appellate Court, this Court is of the considered view that the petitioner not be required to undergo Imprisonment, would now be required to be extended with the benefits under the provisions of the Probation of Offenders Act, 1958.

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However, this Court having not interfered with the sentencing of fine as imposed upon the petitioner by the learned Trial court, the petitioner would be required to deposit the same before the learned Trial Court.

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15. In view of the above discussions, it is directed that the petitioner, herein, will file 2(two) sureties to the tune of Rs.20,000/(Rupees Twenty Thousand) each, along with a personal bond before the learned Trial Court i.e. the Court of the learned Judicial Magistrate 1^st class, Jorhat, and undertake, to the effect that the petitioner shall maintain peace and good behavior during the period of 1(one) year from today. The aforesaid bond be filed by the petitioner within a period of 1(one) month from today, along with the deposit of the fine amount as imposed by the learned Trial Court vide the Judgment and Order dated 27.10.2010

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16. With the above observations and directions, the present Criminal Revision Petition stands disposed of.

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17. Send down the records of the case to the Trial Court along

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with a copy of this order for information and necessary action.

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JUDGE

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Md. Abdul Hashim @ Hussain v. the State of Assam

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Md. Abdul Hashim @ Hussain v. the State of Assam

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