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2006 Supreme(Bom) 259
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(NAGPUR BENCH)
R. C. CHAVAN, J.
Shri. Mustafikhan s/o. Mumtajkhan Pathan - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No.325 of 1996
Decided on 22nd February, 2006.
Shri. V. R. MUNDRA, Counsel for Appellant.
Shri. B. H. LANJEWAR, Additional Public Prosecutor for Respondent.
Headnote:Indian Penal Code, 1860 - Sections 467 and 468 - Forgery of a document with the intention of cheating - Section 468 covers offence under Section 467 - Unless forgery of a document is established there would be no question of convicting a person for forgery for the purpose of cheating. - Where the trial Court acquitted the appellant of the offence punishable under Section 467 of the Penal Code, the Court could not have convicted appellant for the offence punishable under Section 468 of the Penal Code. Since the offence punishable under Section 468 covers that under Section 467, if the accused is acquitted of offence punishable under Section 467, the question of his being held guilty for offence punishable under Section 468 of the Penal Code would not arise. Section 467 of the Penal Code makes it punishable to forge a document, which purports to be an acquittance or receipt acknowledging the payment of money. Section 468 makes forgery of a document committed with the intention of cheating punishable. Therefore, unless forgery of a document is established, there would be no question of convicting a person for forgery for the purpose of cheating. The trial Judge could have held that forgery for the purpose of cheating was proved, but since the offence punishable under Section 468 includes the one under Section 467 of the Penal Code, a separate conviction or sentence was not required to be recorded for the offence under Section 467 of the Penal Code. Such a course would have been justifiable. However, when the accused was found not guilty for offence punishable under Section 467, conviction for offence punishable under Section 468 of the Penal Code is indeed hard to sustain.
Indian Penal Code, 1860 - Section 477-A - Appellant convicted under Section 477-A for which no charge was framed - Held, conviction was unjustified. - There was indeed no charge of offence punishable under Section 477-A of the Penal Code, which makes it punishable for an officer or a servant, who wilfully, and with intent to defraud, falsifies accounts of his employer. The Special Judge observed that though specific charge under Section 477-A of the Penal Code was not framed, it was not an irregularity. He felt that the accused would not be prejudiced and in the result, he held the accused guilty of offence punishable under Section 477-A of the Penal Code. Now since falsifying accounts is not an ingredient of the offence of committing forgery for which the appellant was duly charged, and since the ingredients of the two offences do not overlap, it was not appropriate for the Special Judge to hold that the conviction could be handed down for the offence punishable under Section 477-A of the Penal Code without there being charge. ordinarily, irregularity in framing the charge does not vitiate the conviction so long as it is shown that such irregularity or omission to frame a charge has not prejudice d the trial, by showing that the accused was put to sufficient notice of the charge, which he has to meet. In this case, Section 477-A of the Penal Code was altogether different offence. If the trial Judge felt that conviction for such a charge was necessary, he could have framed the charge and given an opportunity to the accused to cross-examine any prosecution witnesses in relation to the new charge so added. Without having done so, conviction under Section 477-A of the Penal Code is equally unsustainable.
Prevention of Corruption Act, 1947 - Section 5(1)(d) - Offence of obtaining illegal gratification - It would be necessary to show that such gratification was obtained from someone else. - The provisions of Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act no doubt may cover the case of an employee, who abuses his position as a public servant and obtains a valuable thing for himself. But it must be borne in mind that the object of phrasing Section 5(1)(d) of the Act in broad terms is to ensure that the corrupt do not escape punishment because of restrictive clauses while defining offences. It does not, however, follow that the type of activity which the appellant indulged in was intended to be covered by the provision of Section 5(1)(d) of the Prevention of Corruption Act. For proving an offence of obtaining illegal gratification, it would be necessary to show that such gratification was obtained from someone else. Committing criminal breach of trust or misappropriation of public money is duly covered by offence punishable under Section 409 of the Penal Code. Therefore, it is not necessary to resort to the broad language used while defining offence punishable under Section 5(1)(d) of the Prevention of Corruption Act. In view of this, it is not necessary to convict the appellant of offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act.
2. Facts, which led to the appellant's prosecution and conviction, are as under:
The appellant was working as Junior Engineer and was incharge of execution of construction of tanks at Kudwa. Dhakni and Mundipar in Gondia Sub-Division. This work was to be executed under the Employment Guarantee Scheme. The appellant had the services of four muster clerks to keep a track of persons employed for the work of construction of these tanks. Between 7-1-1976 and 11-31976, same set of 21 labourer were shown to have been engaged at one and the same time for construction of the irrigation tanks at Kudwa, Dhakni and Mundipar. Payments were shown to have been made by the appellant to bogus labourers engaged. The investigation revealed that in all a sum of Rs.6,764.10 Ps. was misappropriated by the appellant abusing his position as Supervisor. Accused No.2 was a labourer engaged and he was made to put his thumb marks on the muster rolls to evidence receipt of monies by the fictitious persons, who were shown to have been engaged for the works. After a report, an offence was registered and on completion of investigation, charge-sheet was sent up in the Court of Special Judge at Gondia.
3. Upon consideration of material before him, the learned Special Judge charged both the accused of offences punishable under Sections 409, 467 and 468 read with Section 109 of the Penal Code and Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act. Since the accused pleaded not guilty, they were put on trial. In its attempt to bring home the guilt of the accused, the prosecution examined as many as 14 witnesses. Upon consideration of evidence tendered before him, the learned Special Judge acquitted accused No.2 of all offences and also acquitted the present appellant of the offence punishable under Section 467 of the Penal Code. However, he convicted the appellant of the other offences and sentenced him, as aforementioned. Aggrieved thereby the appellant has preferred this appeal.
4. I have heard the learned counsel for the appellant as also the learned Additional Public Prosecutor for the State.
5. The learned counsel for the appellant was at his best in attempting to demonstrate that his client was innocent by pointing to the factors, which went in his client's favour. He wondered as to how the learned Trial Judge could have recorded - a conviction for offence punishable under Section 468 of the Penal Code after having acquitted the appellant of offence punishable under Section 467 of the Penal Code. He also pointed out that though there was no charge of offence punishable under Section 477-A of the Penal Code, the learned Judge had recorded a conviction of this offence. He submitted that this course was totally impermissible.
6. Since the offence punishable under Section 468 covers that under Section 467, if the accused is acquitted of offence punishable under Section 467, the question of his being held guilty for offence punishable under Section 468 of the Penal Code would not arise. Section 467 of the Penal Code makes it punishable to forge a document, which purports to be an acquaintance or receipt acknowledging the payment of money. Section 468 makes forgery of a document committed with the intention of cheating punishable. Therefore, unless forgery of a document is established, there would be no question of convicting a person for forgery for the purpose of cheating. The learned Trial Judge could have held that forgery for the purpose of cheating was proved, but since the offence punishable under Section 468 includes the one under Section 467 of
