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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11TH DAY OF SEPTEMBER, 2012 BEFORE

THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA CRIMINAL REVISION PETITION NO.773/2008 BETWEEN:

Sri S. Ravichandran,

S/o. late P.V.K. Variyar,

Major, R/at Door No.11-8-160,

Kohinoor Road, Madikeri,

Kodagu.

... PETITIONER

(By Sri Venkatesh R. Bhagat, Adv.)

AND:

The State of Karnataka,

Represented by its State

Public Prosecutor,

High Court of Karnataka Building,

Bangalore - 560 001.

... RESPONDENT

(By Sri Vijayakumar Majage, HCGP)

This Crl.R.P. is filed under S.397 r/w 401 Cr.P.C. praying to set aside the Judgment dated 11.04.2008 passed by the Sessions Judge, Kodagu, Madikeri in Crl.A.No.67/2000 confirmed by the Judgment dated 16.9.2000 passed by the CJM., Kodagu, Madikeri in C.C.No.56/1996.

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This Crl.R.P. coming on for hearing this day, the Court made the following:

ORDER

The petitioner was convicted under Ss.419 and 468 of the Indian Penal Code. He was sentenced to undergo imprisonment for different periods and also pay fine under the aforesaid Sections. An appeal filed by the accused was dismissed by the learned Sessions Judge, Madikeri. The conviction and sentence under the said sections passed by the Trial Court was affirmed. Challenging the same, the accused has filed this Criminal Revision Petition.

2. According to the prosecution, the petitioner altered a demand draft bearing No.275042, dated 11.7.1995, from `10/- to `10,00,000/- issued by State Bank of Mysore, Hassan and presented the same for encashment in his S.B. A/c No.RP-30/5945 at State Bank of India, Madikeri. It was alleged that the petitioner forged the signatures of bank officials with an intention of cheating and receiving the said sum at State Bank of India, 3

Madikeri. Complaint having been filed, Madikeri Police registered case, conducted investigation and filed the charge sheet against the petitioner-accused for the offences punishable under Ss.419, 420 and 468 IPC. Charges were framed and put to the accused. He denied the charges and claimed trial. The prosecution examined PWs.1 to 18 and marked Exs.P1 to P51 and MOs.1 to 3. Considering the rival contentions and the record, learned Trial Judge found the accused guilty of the offences under Ss.419 and 468 of IPC, passed Judgment of conviction and imposed sentence.

3. Sri Venkatesh R. Bhagat, learned advocate appearing for the petitioner contended as follows: a) The charge framed by the learned Magistrate is vague, improper and there is violation of S.218 Cr.P.C. and that the accused-petitioner has suffered prejudice.

b) In view of the Judgment of acquittal for the offence under S.420 IPC, the Judgment of conviction and order of sentence passed for the offences under Ss. 419 and 468 IPC is illegal.

c) Explanation offered by the accused, when examined under S.313 Cr.P.C., has not been considered and the 4

impugned Judgments being vitiated, injustice having occasioned, interference is warranted.

4. Sri Vijayakumar Majage, learned HCGP, on the other hand contended as follows:

a) In the appeal filed before the Court below, no ground was raised with regard to charges framed being vague or improper and any prejudice having been suffered.

b) The petitioner-accused produced in his S.B. account, the materially altered/forged demand draft/Ex.P4 for cheating the Bank.

c) Ingredients of the offences under Ss.419 and 468 IPC having been established by producing credible evidence, the Courts below are justified in finding the accused guilty of the offences under the said Sections. Acquittal for the offence under S.420 IPC has no material bearing in the matter. d) Concurrent findings recorded, based on credible evidence, by the Courts below being neither perverse nor illegal, interference in exercise of revision jurisdiction is not warranted.

5. Perused the record. Keeping in view the rival contentions, the points for consideration are :

1. Whether the charges framed against the accused are vague, improper and has occasioned failure of justice? 5

2. Whether the conviction of the accused and the sentence imposed for the offences under Ss.419 and 468 IPC is justified?

Re point No.1:

6. Learned Magistrate, on 23.7.1998, framed the following charges:

"1. That you the accused on 11.7.95 has tendered a D.D., bearing No.275042 dated 11.7.1995 for `10,00,000/- drawn on the State Bank of Mysore, Madikeri, issued by the State Bank of Mysore, Hassan branch by altering the D.D. from `10/- to `10,00,000/- through the S.B.I., Madikeri in your S.B. A/c No.R.P.30/5945.

2. Secondly that you on the said date, time and place forged the signatures of the bank officials of Mysore Bank, Hassan with the common intention to cheat and deceive the State Bank of Mysore and thereby you committed the offence p/u/Ss.419, 420, 468 of I.P.C. which is my cognizance."

7. It is trite that, mis-joinder of charges is not an illegality, but an irregularity curable under S.464 or S.465 Cr.P.C., provided no failure of justice had occasioned thereby. Whether or not, the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial, whether he knew what 6

he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.

8. In the light of the settled principles of law, let me now examine the facts of the present case, to find out as to whether, any failure of justice has occasioned thereby or whether any prejudice is caused to the accused.

9. The accused was represented by an advocate. All the prosecution witnesses were subjected to incisive cross- examination. In the examination under S.313 Cr.P.C., 24 questions were put to the accused, affording an opportunity to explain all the circumstances appearing against him. To question No.24, whether he wished to say anything more, the accused has stated as under: "I was working as Asst. Coffee Inspector in Coffee Board. I was operating savings accounts in different banks wherever I was officially posted in official capacity. The transaction was in lakhs of rupees. I have not done any mistakes in the Department. I know the consequences and procedure of obtaining DD by forging. I took voluntary retirement. Now, working in 7

a private firm as a General Manager. Now, the transaction is in crores. When I had been to Bank, the officers told me about problem in my account and the police came. They took my signatures. The documents were recovered from my house in my absence. I do not know what they have taken. I have not gone to Bank to give D.D. I am innocent."

10. From the above, it is clear that there is no jumbling up of the charges. The charge is one of cheating by personation, thereby dishonestly inducing delivery of property i.e., the amount of `10,00,000/-. The charge by referring to various sections of IPC, makes it clear that the forgery was the purpose of cheating by using a forged document as genuine. What was meant by the charge was apparently fully understood by the accused, because he never complained at the appropriate stage or during the course of trial, that he was confused by the charge. In the appeal filed, no ground with regard to any prejudice was raised nor urged for consideration. In these circumstances, the first contention of Sri Venkatesh R. Bhagat has no merit.

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Re point No.2:

11. In order to constitute an offence of forgery, the document must be made dishonestly or fraudulently. There must be some advantage to one side with a corresponding loss to the other side. Every forgery postulates a false document either in whole or in part. S.468 IPC deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent. In order to constitute forgery, the first element is that, accused should have made a false document. False document must be made with an intent to cause damage or injury to the public. The prosecution in order to prove the charges, has examined 18 witnesses and marked several documents.

12. The material evidence placed on record by the prosecution is;

M.S.Bopanna/PW-1 has said that, he knows the accused, who is having S.B. account in his bank and on 12.7.1997 at 10.45 a.m., the accused entered in his 9

chamber, showed a counterfoil for having paid a sum of `10,00,000/- and on enquiry, informed him that he has presented a D.D. worth of `10,00,000/- drawn on State bank of Mysore, Madikeri Branch for collection to his bank and requested for remitting to his account. He has further said that, accused requested for release of an amount of `7,00,000/- and for that, he, having replied to the accused stating that, unless D.D. of `10,00,000/- was cleared by State Bank of Mysore, Madikeri Branch, he cannot honour the cheque for `7,00,000/-. PW-1 has spoken about the procedure adopted by the bank for clearance of the instruments. He has stated that the D.D. was given for clearing to State Bank of Mysore and about Krishna Murthy/PW-2, contacting him and informing him that D.D. for `10/- having been forged to `10,00,000/-. He has stated that, therefore, the D.D. was not honoured and same has been returned. He has further said that, at 2.10 p. m., accused came to the bank and the fact of he informing the police over telephone and requesting them receive his complaint in the bank. The police came to the 10

bank at 3.45 p.m., and he received Ex.P1. He has lodged the complaint/Ex.P2 before the police, who, later took the accused to the police station. PW-1 has identified the counter foil/Ex.P3 shown by the accused. Ex.P4 is the forged D.D. He has said that, accused came to the bank in a Maruti Car and the police seized the same under the mahazar/Ex.P5, which he signed/ Ex.P5(a). He has said that, on the next day, the police visited the bank and recovered the cheque/Ex.P6 given by the accused for `7,00,000/- and his account pass book/Ex.P7. The recovery mahazar is at Ex.P8 and signature of PW-1 is Ex.P.8(a). The account extract of the accused is Ex.P.9. The challan written by the accused entering `10,00,000/-, recovered by the police is Ex.P10. The letter written with regard to handing over the challan is Ex.P11. PW-1 has verified the signature of the accused found on Ex.P.9 and that of the model signature of the accused maintained in the Bank.

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13. Krishna Murthy/PW-2, is the Manager of State Bank of Mysore. He has said that, on 12.7.1995, as usual, he got certain cheques in the inward clearing for payment to other banks and amongst them was one D.D/Ex.P4 for `10,00,000/-, presented by State Bank of India. On verification, he found that it was issued under OT series and the said series, D.D. worth of `999/- will only be issued. He has said that, for the DDs worth more than `50,000/-, two officers affix their signatures in the major branches and in smaller branches, a senior officer affixes his signature. Ex.P4 was obtained from Hassan branch, drawn on Madikeri branch and had only one signature on it and the other signature was not identifiable. Ex.P4/D.D. was in the name of the accused. He has said that, as per the procedure of the bank, the issuing bank has to intimate the fact of issuing of D.D. to the Drawing Bank by means of a Telegram or over phone and that the Madikeri branch had not received any intimation of D.D./Ex.P4 having been issued from Hassan branch to Madikeri branch. He has said that, on suspicion, he contacted 12

Hassan branch over phone and got confirmation of DD/Ex.P4 having been issued for `10/- only. Thereafter, he intimated the fact to PW-1, who instructed him to state the facts in writing and accordingly, he gave Ex.P1. He has said that, the police, on the same day drew a mahazar and recovered Ex.P4 and seized the car of the accused as per Ex.P5.

14. H.V. Shanthappa/PW-3, is cashier in State Bank of Mysore, Hassan. He has stated the procedure followed at the time of obtaining of D.D. He has identified Ex.P5/challan, given in the name of one Baburaj, requesting for issue of D.D. for `10/-, by remitting D.D. charge for `5/- and the D.D. being drawn in favour of accused. He has identified his signature/Ex.P12(a) and affixture of seal on Ex.P12.

15. Smt. B. Ramamani/PW-5, was a Clerk in the Hassan branch at the relevant point of time. She was working in the draft issuing section and she has received 13

Ex.P12. She has spoken about the procedure with regard to issuance of different value Demand Drafts.

16. N.M. Udayakumar/PW-6, was the Manager of Hassan Branch at the time of incident. He has said that, Ex.P12 was given by one Baburaj, requesting the issuing of D.D. in the name of the accused. He has identified his signature on Ex.P4, D.D. for the value of `10/-. He has stated that, Ex.P4 has been forged outside the Bank.

17. T.N. Rameshappa/PW-9, was the General Manager in Madhu Jayanthi International Ltd., working as Manager in the Coffee curing section. He has identified the accused and has stated that, he has seen the accused at Reliance Coffee Company, Hassan, which supplied coffee to them.

18. Prabhudevaiah/PW-10, has said that, he was working as a clerk in the Reliance Coffee company and used to purchase coffee from the coffee producers. He knows the accused, who was an agent of his company and 14

used to visit his office to purchase coffee from the growers of the company which is located in Tannirhalla extension. He has said that, there is no shop by name Star Electricals.

19. Smt. Rita Maskareniyas, was the Cash Assistant. She has said that, on 12.7.1995, while she was working in the State Bank of Mysore, Madikeri branch, the accused gave one D.D./Ex.P4, under challan/Ex.P3 and after handing over, accused left the place and she verified the D.D. She has stated that, she found defects in Ex.P4 and informed the Manager, since, accused had left.

20. Goutham/PW-11, has said that, he owns a coffee estate and accused was working as Inspector in the Coffee Board and he having sold coffee to the accused and the failure of the accused to pay the value of the coffee and the outstanding being `2,92,400/-. He has said that, accused issued a cheque and requested not to present the cheque and police having recovered the cheque/Ex.P13. 15

21. A. Rajkumar/PW-12, has said that, he was working in Madikeri branch and on 13.7.1995, police seized the cheque of `7,00,000/- under mahazar/ Ex.P8 .

22. Lakshminarayana/PW-16 is the Scientific Officer, Forensic Laboratory. He has said that, the police had referred the documents, Ex.P4/Demand Draft and Ex.P12, application form for D.D. and the samples of signature of a relevant person. He has conducted the scientific investigation of the relevant documents and has furnished the opinion/Ex.P33.

23. R.Ananda/PW-17 is the Investigation Officer and has given the details of the investigation done.

24. The oral and documentary evidence brought on record by the prosecution has been noticed and has been appreciated in great detail by the Courts below. Accused- petitioner has presented in the bank, the Demand Draft/Ex.P4, for encashment. By remitting `10/- and commission charges of `5/-, Ex.P4 was purchased for the 16

value of `10/- only. Petitioner, who has an S.B. account in the bank, presented the said instrument for payment of `10,00,000/-. The petitioner, with an intent to defraud, having materially altered the sum in Ex.P4, from `10/- to `10,00,000/-, by committing forgery and knowing the document to be false and forged one, has presented the same for encashment of `10,00,000/-. The offence of forgery is complete in the instant case, upon the sum in Ex.P4 being altered from `10/- to `10,00,000/- and affixing an un-identifiable signature therein. There is clinching evidence against the accused about the acts of forgery committed for the purpose of cheating the State Bank of Mysore and to have fraudulent gain for himself.

25. In the above factual background, it is clear that the prosecution has established the charge against the accused for the offences under Ss.419 and 468 IPC. The learned Magistrate was, therefore, justified in convicting the accused and the learned Sessions Judge was justified in affirming the conviction, by way of dismissing the 17

appeal. The findings recorded concurrently by the Courts below, in the impugned Judgments, having evidentiary support, are neither perverse nor illegal. Thus, the conviction and sentence imposed on the petitioner is justified.

In the result, the petition is dismissed. The bail bond and surety bond are cancelled. The petitioner to surrender before the Trial Court and serve out the sentence imposed on him.

Sd/-

JUDGE

Ksj/-