Allowed

Illiyaz @ Illu v. State by C a O

Karnataka HC24 Jan 2022CRL.RP/1032/2012

Case brief

AI extract

What is this about?

The High Court allowed a revision petition challenging a conviction for forgery arising from fake surety documents in an NDPS bail case. The Court set aside the lower courts' judgments, holding that the petitioner, being in custody, could not have forged the documents, thus acquitting him due to non-application of mind by the courts below.

What did the court decide?

Revision petition allowed; judgment of appellate court and Magistrate set aside; Petitioner acquitted of offences under Sections 465, 468 and 471 IPC.

Illiyaz @ Illu Vs State by C a O — Cheating and Forgery | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^th DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CRIMINAL REVISION PETITION NO.1032 OF 2012

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BETWEEN:

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Illiyaz @ Illu, Son of Anwar Khan, Aged about 36 years, Residing at No.2355, 2^nd Ediga, C.V.Road, Bannimantap, Mysuru-570015.

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…Petitioner

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(By Smt. Sohani Holla, Amicus Curiae)

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AND:

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State by C.A.O., Mysuru Represented by Public Prosecutor, High Court Building, Bengaluru-560001.

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…Respondent

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(By Sri K.S.Abhijith, HCGP)

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This Criminal Revision Petition is filed under Section 397 of Cr.P.C., praying to set aside the judgment of conviction dated 30.11.2011 passed by the JMFC (II court), Mysuru in C.C.No.215/2011 and also confirming conviction and sentence dated 27.07.2012 passed by the V Additional District and

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Sessions Judge, Mysuru in Cr.A.No.8/2012 for the offence under Section 465, 468, 471 read with 34 of IPC.

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This Criminal Revision Petition coming on for hearing through video conferencing this day, the Court made the following:

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ORDER

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The accused in C.C.No.215/2011 on the file of JMFC (II Court), Mysore has preferred this revision petition challenging the judgment of the V Addl. District and Sessions Judge, Mysore in Crl.Appeal.No.8/2012. The facts of the case are as below:

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The petitioner was arrested by Mandi

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Police, Mysore in connection with Cr.No.382/2009

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for the offence for the offence under section 20(b)(i) of NDPS Act. His application for bail made under section 439 Cr.P.C. was allowed with certain conditions. He was directed to provide two sureties for his release in addition to executing a bond for a certain sum of money. In compliance of that order, two sureties viz., Lokesh and

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Narayanaswamy came forward and filed their affidavits and some documents to show their solvency. It appears that subsequently, it came to light that one of the sureties viz., Lokesh had furnished documents which were forged and that the property which he had shown to be belonging to him did not stand in his name. To that effect, the Kadakol Gram Panchayath, Mysore gave a letter that no property was available in the name of Lokesh as depicted in the demand register extract produced by him before the Special Court which ordered for releasing the petitioner on bail. This resulted in the Special Judge directing the Chief Administrative Officer of the Sessions Court, Mysore to lodge a complaint against the petitioner and the surety by name Lokesh, exercising his power under section 340 Cr.P.C. Since by then surety Lokesh had died, the Chief Administrative Officer made a complaint against the petitioner alleging offences punishable under sections 465,

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468, 471 r/w 34 IPC. The Magistrate, before whom the complaint was registered, tried the petitioner and convicted him for the said offences. Consequently the petitioner was convicted and sentenced for the offences under sections 465, 468 and 471 IPC. Challenging this judgment of conviction, the petitioner preferred an appeal to the Sessions Court, Mysore by filing Criminal Appeal No.8/2012. The learned Sessions Judge dismissed the appeal and confirmed the judgment of conviction of sentence. Hence this revision petition.

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Heard Smt. Sohani Holla, Amicus Curiae and the Government Pleader.

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Smt. Sohani Holla, Amicus Curiae argues that both the courts below have committed an error in convicting the petitioner for the offences under sections 465, 468 and 471 IPC without noticing the fact that the petitioner was not the

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person who was involved in committing the offence of forgery. It was surety by name Lokesh who produced some documents to show his solvency and those documents were found to be forged. The Chief Administrative Officer of the District and Sessions Court, Mysore did not have personal knowledge of forgery committed and that he lodged the complaint only on the basis of the directions issued to him by the Sessions Court. The only evidence that the Magistrate had relied upon is that of Chief Administrative Officer. His evidence is not helpful at all. The prosecution did not examine any of the officers of the Gram Panchayat, who had issued demand register extract. In this view, the trial court committed an error in holding the petitioner guilty of the offence and that the appellate court also did not apply its mind while confirming the judgment of the Magistrate. Therefore it is his argument that the

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judgments of the court below are to be set aside and the petitioner, acquitted.

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Sri. K.S. Abhijith, Government Pleader

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submits that the petitioner is the beneficiary of the documents produced by the surety and thereby he committed an offence of forgery and rightly both the courts below have come to conclusion to

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convict him for the offences.

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Having heard the arguments, it is to be

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stated that the action against the petitioner was initiated under section 340 Cr.P.C. The Special Court noticed that documents produced by Lokesh were forged and fake. As rightly argued by Smt. Sohani Holla, PW.1 H.K.Srinivasan was the Chief Administrative Officer of the District Court and he

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did not have first hand information about the genuineness of the documents produced by the surety. He just acted on the directions issued by the Special Court to lodge a complaint before the

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Magistrate. Whatever may be the case, it is not disputed that the petitioner was an accused in an NDPS Case and that he was in custody while two persons viz., Lokesh and Narayanaswamy came forward to stand as sureties for him. Obviously when the petitioner was in custody, somebody should have arranged for the production of the sureties before the Special Court. Initially the court accepted the surety-ships of Lokesh and Narayanaswamy and released the petitioner on bail. Therefore when their sureties were accepted, the Special Court should have come to conclusion about the genuineness of the documents produced by the sureties. Subsequently the court might have come to know that the documents produced by the surety viz., Lokesh were forged. Therefore it might have taken decision to take action under section 340 Cr.P.C. But what emerges for consideration is whether the petitioner can be said to have committed offence of forgery for

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prosecuting him for those offences. When he was in custody and if somebody arranged the sureties, it is not understandable as to how the petitioner could forge the documents for the purpose of coming out of jail. If at all anybody could be held guilty, it was none other than Lokesh, who had died by the time complaint under section 340 Cr.P.C. had been registered by the Chief Administrative Officer of the District Court. Anyway it is found that there is nothing on the record to show that the petitioner was involved in producing forged documents. Merely because the surety produced forged documents, the petitioner cannot be held guilty of committing the offence of forgery. In fact the Special Judge before directing the Chief Administrative Officer of the District Court to lodge the complaint ought to have applied mind that complaint could be registered only against Lokesh and not against the petitioner. Even the Magistrate has also not applied his mind.

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The appellate court has also failed to notice that the petitioner could not have been prosecuted at all for the offences under section 465, 468 and 471 IPC. What is forthcoming is sheer non application of mind by the Magistrate as well as the Sessions Court. In this view, the judgment of the Magistrate as also the Sessions Court are liable to be set aside and hence the following:

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ORDER

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Revision petition is allowed. The judgment of the appellate court in Crl.Appeal.No.8/2012 and the Magistrate in C.C.No.215/2011 are set aside. The petitioner is acquitted of the offences under sections 465, 468 and 471 IPC.

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Amicus Curiae is directed to file a memo to the effect that she has offered service of pro bono.

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Sd/JUDGE

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Illiyaz @ Illu v. State by C a O

Case brief

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Illiyaz @ Illu v. State by C a O

Case brief

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