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High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE R.C. CHAVAN
Sanjay Jaywant Gaikwad & Others
Versus
The State of Maharashtra & Others
Criminal Appeal Nos. 410 of 2006, 486 of 2006 & 710 of 2006
Decided on : 04-01-2013
Where an expert opined that none of stamps referred to him was counterfeit but same was impressed with forged rubber stamps therefore charge of counterfeiting may be altered to one of forgery. - In the instant case the accused had altered a genuine used stamp to make it resemble an unused stamp. In the case at hand, there is absolutely no alteration. There is nothing to show that the stamps had been previously used, including the two fifty rupee stamps, which have received special attention of the trial Judge. For, if those stamps had been already used, they would have borne the mark of cancellation by the issuing office. All that can be said about those stamps is that they had been earlier pasted (and not affixed) elsewhere and were re-pasted on the document in question. It cannot be overlooked that there is no complaint either from the Security Printing Press or the treasury about theft of any such stamp at least in the record of this case. Failure of appellants to show the source from which they got these stamps does not make the stamps counterfeit even stolen property.
The plea that a Special Adhesive Stamp becomes a genuine stamp only upon it being rubber stamped by issuing office has its own dangers which prosecution ought to realise. In that case, a person in possession of counterfeit stamps resembling Special Adhesive Stamps issued for the purpose of revenue may not at all be prosecuted for the offence punishable under Section 259 of the India Penal Code without the stamp being effaced. Effacement of a stamp to prevent re-use cannot be included as a part of the as a part of the process of production or printing or creation of such stamps. Therefore to term as counterfeits, stamps certified by expert to be genuine only because effacement is a forgery would be virtually re-writing the law. Also what has been done in this case is that genuine Special Adhesive Stamps were fraudulently obtained and then were impressed with forged rubber stamp of the Extended Sales Counter and Proper officer at Bandra. Since there is no complaint off theft or misappropriation, as far as obtaining Special Adhesive Stamps fraudulently, no charge could be made, since inability to satisfactory explain source is itself not an offence. However, putting rubber stamp thereon would amount to forgery by making false document as defined in item (a) of first Clause of Section 464 of the Indian Penal Code for the purpose of cheating punishable under Section 468 of the Indian Penal Code, and not offences punishable under Sections 256, 258 and 259 of the Code.
The Court may alter the conviction of accused to one under appropriate provision of law. There can be no doubt that forgery cannot be termed as a lesser offence in relation to offence of counterfeiting Government stamp, nor is it included in the offence of counterfeiting to attract provisions of Section 222 of the Code of Criminal Procedure. However, a conjoint reading of Provisions of Sections 215 and 221 of the Code of Criminal Procedure may remedy the situation. Thus, though some of the sections of Penal Code invoked by the trial Judge may not be apt, the particulars given are sufficient to hold that accused could not have been misled due to the reference to wrong penal sections about counterfeiting of stamps instead of forgery. It cannot, therefore, be said that there would be any failure of justice or prejudice to the accused if the conviction is altered.
1. These three appeals are directed against conviction of the appellants by the learned Special Judge, Mumbai for the offences punishable under Sections 120B, 255, 256, 258, 259, 420 read with Section 511 of the Indian Penal Code and sentence of rigorous imprisonment for ten years with a fine of Rs.50,000/-each or in default of payment of fine further rigorous imprisonment for a period of one year imposed upon them on the conclusion of trial of Sessions Case No.37 of 2005/156 of 1999 before him. The learned Judge also convicted Ramratan Shrinivas Soni appellant in Criminal Appeal No.486 of 2006 for the offence punishable under Section 256 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a period of seven years with a fine of Rs.10,000/-or in default of payment of fine further rigorous imprisonment for a period of three months. The appellant Abdul Karim Ladsaheb Telgi in Criminal Appeal No.710 of 2006 was also convicted for the offences punishable under Sections 258 and 259 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of five years with a fine of Rs.20,000/-on each count or in default of payment of fine further rigorous imprisonment for a period of six months on each count. Telgi was also convicted for the offence punishable under Section 255 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of ten years with a fine of Rs.50,000/-or in default of payment of fine further rigorous imprisonment for a period of one year. He was further convicted for the offence punishable under Section 420 read with Section 511 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of three years with a fine of Rs.10,000/-or in default of payment of fine further rigorous imprisonment for a period of three months. The appellants Sanjay Jaywant Gaikwad and Ramratan Shrinivas Soni were acquitted of the offence punishable under Section 255 read with Section 34 of the Indian Penal Code. Sanjay Gaikwad was also acquitted of the offence punishable under Sections 259 of the Indian Penal Code and under Section 63(b) of the Bombay Stamps Act, 1958. The appellant Abdul Karim Telgi was acquitted of the offence punishable under Section 263 of the Indian Penal Code and under Section 63(a)(b) of the Bombay Stamps Act, 1958. Aggrieved by their conviction and sentences imposed upon them, the appellants are before this Court.
2. Facts which gave rise prosecution of the appellants and relevant for the decision of these appeals are as under:-
Appellant Abdul Karim Telgi was a licensed stamp vendor operating a shop in his own name. Through an employee, he approached Shri Manish Shantilal Parekh, a partner of M/s. Purnanand & Company, Advocates and Solicitors, for sale of Special Adhesive Stamps to be affixed on Lease Deeds and copies thereof. These Lease Deeds and copies were to be executed on behalf of their clients M/s. Lalbhai Realty Ltd. And M/s. Arvind Fashion Limited.
3. The firm of lawyers handed over the Deeds for affixing Special Adhesive Stamps and offered to pay for them by Pay Orders drawn in favour of 'Superintendent of Stamps'. Appellant Telgi's representative declined to accept Pay Orders stating that Telgi's firm had necessary credit with the State Government Stamp office and that after stamps were affixed, a bill will be raised. Accordingly, Telgi's firm raised a bill and demanded payment of the bill. Since Shri Manish Parekh did not find a receipt issued by stamp office for payment of stamp duty, he insisted on such receipt being produced. The receipt was, however, not produced and representative of Telgi also did not turn up. Shri Manish Parekh, therefore, asked his Clerk, Shri Rasiklal Shah to inquire about the issuance Apeal 410-06.odt of Special Adhesive Stamps, who reported back that Special Adhesive Stamps affixed had not been issued by the stamp office and that inquiries were being made with the Extended S
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