Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 325

IN THE HIGH COURT OF ALLAHABAD
DINESH KUMAR SINGH, J.
Indra Pratap Tiwari – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.1588, 1761, 1837 of 2021
Decided on : 16-03-2023

Advocates:
Advocate Appeared:
For the Appellant : Dhirendra Kumar Mishra, Ishan Baghel, Manoj Kumar Mishra, Salil Kumar Srivastava
For the Respondent: Anuj Pandey, Asok Pande, Sushil Kumar Singh

Point of Law : Offence under Section 468 IPC is commission of forgery with an intention to use forged document for the purposes of cheating, whereas essential ingredients of Section 471 IPC are fraudulently or dishonestly using as genuine any document or electronic record which the accused knows or has reason to believe to be a forged.

Headnote:
Indian Penal Code,1860 - Section 420 , 468 and 471 – Criminal Procedure Code,1973 - Section 374(2) - Indian Evidence Act - Section 65 – Offence of Cheating – Forgery for purpose of cheating – Charged- Prosecution case, in brief, is that Principal of K.S. Saket Postgraduate College, gave a complaint to Senior Superintendent of Police, on alleging that in his previous letter dated in respect of accused-appellants, he informed that they had taken admission on basis of forged mark-sheets - It was alleged that accused-appellant had failed in B.Sc Part-I examination having Roll No. and despite writing back papers, he could not clear examination of B.Sc Part-I and, he was not eligible to take admission in B.Sc Part-II, but by forging mark-sheet and fabricating documents in criminal conspiracy, he had obtained a forged mark-sheet of clearing B.Sc Part-I -A copy of admission form verified by then Principal of College was also attached with said letter - It is well settled law that non-examination of Investigating Officer is not fatal to prosecution case if prosecution case is otherwise proved by evidence, and evidence is in conformity with case made out in FIR - Mere non-examination of Investigating Officer, prosecution case should not fail if it is otherwise proved by other evidence brought on record. [Para 27]
Finding of Court: accused-appellants were tried jointly in violation of said procedure - It has further been submitted that conviction of accused-appellants is based upon using the forged mark-sheets to get admission in next class - Only photocopies of mark-sheets allegedly forged by accused-appellants were produced before trial court - Originals were never produced before trial court - Documents produced before the trial court were not proved in accordance with provisions of Indian Evidence Act - Learned trial court had convicted accused-appellants on basis of secondary evidence in gross violation of Section 65 of Indian Evidence Act- Accused-appellants had been tried and convicted together in violation of procedure established by law, which vitiated entire trial proceedings - It is well settled law that non-examination of Investigating Officer is not fatal to prosecution case if prosecution case is otherwise proved by evidence and evidence is in conformity with case made out in FIR - Mere non-examination of Investigating Officer, prosecution case should not fail if it is otherwise proved by other evidence brought on record - Essentially, offence under Section 468 IPC is commission of forgery with an intention to use forged document for purposes of cheating, whereas essential ingredients of Section 471 IPC are fraudulently or dishonestly using as genuine any document or electronic record which accused knows or has reason to believe to be a forged - From evidence lead by prosecution, offences under Sections 420, 468 and 471 IPC are fully made out and proved against accused-appellants and learned trial court has rightly convicted and sentenced accused-appellants for aforesaid offences.
Result : Appeals dismissed

JUDGMENT :

1. The present three appeals under Section 374(2) Cr.P.C. have been instituted against the common judgement and order dated 18.10.2021 passed by the learned Special Judge (MP/MLA)/Additional Sessions Judge, Court No.3, Faizabad in Special Case No.3012 of 2018 (State Vs. Phool Chandra Yadav and others), arising out of Case Crime No.24 of 1992, Police Station Ram Janam Bhumi, District Faizabad, whereby the learned trial court has convicted and sentenced the accused-appellants as under:-

U/s 420 I.P.C. three years imprisonment and fine of Rs.6,000/-each and in default of payment of fine, eighteen days additional simple imprisonment; and

U/s 468 I.P.C. five years imprisonment and fine of Rs.8,000/-each and in default of payment of fine, twenty days additional simple imprisonment.

U/s 471 I.P.C. two years imprisonment and fine of Rs.5,000/- each and in default of payment of fine, fifteen days additional simple imprisonment.

Facts:-

2. The prosecution case, in brief, is that the Principal of K.S. Saket Postgraduate College, Faizabad, Sri Yaduvansh Ram Tripathi gave a complaint to the Senior Superintendent of Police, Faizabad on 16.2.1992 alleging that in his previous letter dated 14.2.1992 in respect of the accused-appellants, he informed that they had taken admission on the basis of the forged mark-sheets. It was alleged that accused-appellant Phool Chandra Yadav S/o Tilakdhari Yadav had failed in B.Sc Part-I examination in 1986 having Roll No.60999 and despite writing back papers, he could not clear the examination of the B.Sc Part-I and, therefore, he was not eligible to take admission in B.Sc Part-II, but by forging the mark-sheet and fabricating the documents in criminal conspiracy, he had obtained a forged mark-sheet of clearing B.Sc Part-I. Copy of the result of back paper of 1986 examination, of which the accused Phool Chandra Yadav had fabricated his marks to declare himself passed, was also annexed with the letter. On the basis of this forged and fabricated mark-sheet, he got admission in B.Sc Part-II for the academic session 1986-87, and the then Principal of the College had approved the admission form of the said accused-appellant. A copy of the admission form verified by the then Principal of the College was also attached with the said letter.

3. Accused-appellant, Indra Pratap Tiwari had appeared in B.Sc Part-II examination in the year 1990 as ex-student with Roll No.4263. He failed in the said examination. Despite having got failed in B.SC Part-II examination, the accused-appellant, Indra Pratap Tiwari submitted a forged mark-sheet allegedly issued by the University dated 8.12.1990 and took admission in B.Sc Part-III for the academic session 1990-91. Copy of the said forged mark-sheet was annexed with the letter. He was given a show cause notice by the College, but no reply was given to the said notice and, thereafter, his admission in B.Sc Part-III was cancelled and his election to the post of Secretary of the student union was also declared as illegal. Copy of the said order of cancelling admission in B.Sc Part-III and his election to the post of Secretary of the student union of accused-appellant, Indra Pratap Tiwari was also annexed with the letter of the Principal of the College.

4. In the said letter, it was further alleged that the accused-appellant, Kripa Nidhan Tiwari had given examination of LLB Part-I in the year 1989 with Roll No.51570, but he was unsuccessful. Despite having got failed in LLB Part-I examination, he on the basis of the forged mark-sheet allegedly issued by the University, took admission in LLB Part-II for the academic session 1989-90 on 11.3.1991. Copy of the forged mark-sheet and the admission form were annexed with the letter. When the Principal got to know about this forgery, he gave a show cause notice to Kripa Nidhan Tiwari, but he did not give any reply to the said notice and, thereafter, his admission in LLB Part-II was cancelled.

5. On the basis of the above-mentioned facts, the