ORDER
D.M. Patnaik, J.
1. The above two revisions having arisen out of a common appellate judgment of the learned Additional Sessions Judge, Jeypore are being disposed of by this common order.
2. One Bighnaraj Tripathy was the Sharistadar and Santosh Kumar Padhy, a Clerk and one Lokanath Mohanty Process Server in the office of the Judicial Magistrate, First Class, Umarkote in Koraput district. All of them faced their trial under Sections 465, 468, 471 and 420/34 of the Indian Penal Code (for short, the ‘Penal Code’).
The Subordinate Judge-cum-Magistrate, First Class, Jeypore by his judgment dated 17-1-86 acquitted accused Bighnaraj Tripathy but convicted accused Santosh Kumar Padhy under Sections 465/468/471 of the Penal Code and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 100/- in default to undergo simple imprisonment for one month and rigorous imprisonment for three years for the offence under Section 471 of the Penal Code. Both the sentences were to run concurrently. The trial Court however did not award any separate sentence for his conviction under Section 465 of the Penal Code.
Accused Lokanath Mohanty was sentenced to undergo two years’ rigorous imprisonment for his conviction under Section 471 of the Penal Code.
On an appeal being preferred by both the convicts separately the learned Additional Sessions Judge confirmed the judgment of the lower Court and thus dismissed both the appeals. Hence the present revisions before this Court.
3. Prosecution case is, some time during first week of November, 1982 the Sheristadar asked accused Santosh Kumar Padhy to write out some portions of the accused summons in some forest cases of the year 1973-74 which had already been disposed of and told him that he (Tripathy) would affix the court seal and obtain the signature of the Magistrate on the summons. Accused Santosh Kumar Padhy having done this, all the three accused persons proceeded to village Gandhinagar with sixty-three forged summons and demanded Rs. 300/- from each accused with a promise to see that the cases were dropped. They gave out a threat that unless they were paid, the persons would be liable for conviction.
The villagers for the moment entertained doubt about the genuineness of the summons and contracted their Advocate at Umarkote and ultimately it was found that the Magistrate’s signatures were forged. This was reported to the Magistrate on 18-11-82. The Magistrate thereafter enquired into the matter and was satisfied that in fact his signatures were forged and that the summons did not relate to cases noted thereon as the cases had been disposed of long since and further detail address of the parties were not written on the summons. Ultimately on trial accused Santosh Kumar Padhy and accused Lokanath Mohanty were found guilty as already mentioned above. All the accused persons were however acquitted the charges for the offence under Section 420/34 of the Penal Code.
4. Mr. J. M. Das, learned counsel for the petitioners, submitted that the courts below committed an error in appreciating the case of the defence with regard to the offence of forgery inasmuch as according to the learned counsel, the prosecution had failed to prove that petitioner Santosh Kumar Padhy forged the summons. The learned counsel further contended that the trial Court committed a serious error in taking into consideration the contents of Ext. 2 which is purported to be an extra judicial confession though the same could not be so considered on the face of it. The judgment of the lower Court, according to Mr. Das, mainly based on this document and there being no corroboration to this document, the judgment is liable to be set aside.
Mr. A. N. Misra, learned Standing Counsel for the State, on the other hand, advanced his argument with reference to the two decisions reported in AIR 1976 SC 1797 : (1976 Cri LJ 1379) (Bhagwan Singh Rana v. State of Haryana) and AIR 1969 SC 422 : (1969 Cri LJ 671) (Nishikanta Jha v. State of Bihar) and submitted that the trial Court committed no error in accepting the inculpatory part of the confessional statement after rejecting the exculpatory part of it. Each of the contentions so raised by both the sides needs examination.
5. From the lower Court record it is found that prosecution has examined as many as 11 witnesses and relied on the documents Exts. 1 to 1/63 (the so-called forged accused summons) and Ext. 2 the so-called confessional statement dated 27-11-82 of accused Santosh Kumar Padhy addressed to the Judicial Magistrate, First Class, Umarkota. By 27-11-82 the Magistrate had not taken cognizance of the offence which was only done on 11-1-83 and that too, under Section 420/34 of the Penal Code. But after examination of all the witnesses before charge when the Magistrate found out a prima facie case of forgery he framed charge on 4-2-84 under the Sections already mentioned above including the charge under Section 420/34 of the Penal Code.
6. I have gone through the evidence on record and the documents exhibited in the case and the judgments of the lower Courts.
The Magistrate held that the prosecution failed to prove its case against Bighnaraj Tripathy and so he acquitted him of all the charges. The learned Magistrate held that accused Santosh Kumar Padhy forged the signature of the Magistrate on the accused summons. The reason that impelled the Magistrate to arrive at such a conclusion was the contents of Ext. 2, the confessional statement. There is no documentary evidence with regard to the forgery nor is there any evidence of the witnesses who have deposed to have seen accused Santosh Kumar Padhy forging the signature of the Magistrate on summons. Admittedly, the alleged forged signatures of the Magistrate on the summons were not sent to the handwriting expert in order to compare the writing with the admitted writing of accused Santosh Kumar Padhy. Therefore, the only basis for coming to such a conclusion is Ext. 2 which cannot be considered a confessional statement at all. It will be appropriate to mention the document itself. This is what the accused gave in writing to the Magistrate.
The accused stated that on 1-11-82 at about 8 a.m. he was proceeding to Government hospital for dressing his injured finger. At that time, Bighnaraj Tripathy, Head Clerk met him near the hospital and called him to the Court to attend to some urgent works which were pending as the staff were availing Puja vacation. He went to the office where accused Tripathy handed over to him about 60 to 70 accused summons forms and asked him to write the case numbers and dates on the summons which he (accused Padhy) did. Thereafter Tripathy told him that he would fill up the names of the accused persons in the original as well as in the duplicate summons put the seal of the Court and obtain signature of the Magistrate. Thereafter, he (accused Padhy) left for his quarters to take his meal. On 3-11-82 at about 9 a.m. Tripathy came to his quarters alone and told him that the summons were ready for causing service on the parties and the Nazir had deputed the other accused Lokanath Mohanty, Process Server for the purpose of service of summons. Then accused Tripathy called him to proceed with him. Though he (accused Padhy) denied first, on being pressed for the same he proceeded with them. Then all the three proceeded to village Gandhinagar by cycle. After reaching the village when the villagers came from their works in the evening, accused Tripathy mentioned before them about the cases and accused Tripathy demanded Rs. 100/- from each of them, promissing to see that cases were dropped. But the villagers told that they would decide the matter next morning. Then all the three accused persons stayed in the village in the night. On the next day morning, the villagers refused to pay the money so demanded. Thereafter Tripathy directed Sri Mohanty to serve the summons and the accused Mohanty served the summons. The villagers paid Re. 1/- for each summons totalling Rs. 55/- to Sri Mohanty for the service of the summons.
In para-12 of the judgment the learned Magistrate held that accused Santosh Kumar Padhy confessed that he wrote the summons and took the same for service to village Gandhinagar. Therefore, there could not be any doubt that he forged the signatures of the Magistrate. Such a finding is totally erroneous, firstly because, he did not admit in the Ext. 2 that he put the signatures of the Magistrate on the summons. Ext. 2 rather shows that accused Tripathy told him that he (Tripathy) would obtain the signature of the Magistrate. Secondly, there is no evidence led by the prosecution that the signatures on the summons were in the hand of accused S.K. Padhy; thirdly, as I have already mentioned above, the disputed or suspected forged signatures were not sent to the Handwriting expert for comparison; fourthly, the Magistrate would have been fully justified in resorting to such an inference, if at the time accused Padhy put the dates and case numbers, he had any knowledge that after he did so, the signature of the Magistrate (which was put subsequently as stated by accused Tripathy) was to be forged; fifthly, there is no evidence as to the meeting of the mind of the accused Tripathy and S.K. Padhy with regard to the forgery as alleged and lastly merely because accused S.K. Padhy gave out the case number and date in the appropriate column for appearance of the accused persons, it could not be said that he committed any act of forgery unless it could be proved that he forged the signature of the Magistrate at the appropriate place of the summons.
For the reasons above, the written statement i.e. Ext. 2 under no circumstances could have been held to be a confession by accused S.K. Padhy for the alleged act of forgery. A document can be said to be falsely made if the signature, seal or date are false vide decision reported in AIR 1971 SC 1011 (State of Bihar v. Shiva Bhikshuk Misra). In the present case at hand, it has not been proved that the alleged signature was in the handwriting of accused S.K. Padhy. That apart, it is also the settled proposition of law that mere fact that the accused was found to be in possession of forged document that would not ipso facto show in the absence of other material that he knew or had reason to believe that they were forged documents vide decision reported in AIR 1963 SC 822 : (1963 (1) Cri LJ 809) (Radha Kishan v. State of Uttar Pradesh); AIR 1979 SC 1506 : (1979 Cri LJ 1123) (Abdul Karim Madar Sahab v. State of Mysore) and AIR 1979 SC 1342 : (1979 Cri LJ 1078) (Dasrathlal Chandulal Joshi v. State of Gujarat). In the present case, the learned Magistrate has jumped to the conclusion that accused Pady forged the document since he wrote a part of the forged document. There is no finding of the Magistrate that the essential part of the document i.e. signature of the Magistrate was forged by the accused. No doubt, he admitted to have put the case numbers and dates meant for appearance of the accused persons. As I have already observed, this alone cannot attribute to an act of forgery on his part particularly when, even according to his own admission, he was so directed by accused Tripathy as the Sheristadar in the office. Charge of forgery, therefore, based on mere suspicion or doubt is not maintainable vide decision reported in AIR 1984 Orissa 71 : (1984) 1 Orissa LR 10 (Upendranath Nayak v. Union of India). I hesitate to act on such ratiocination.
7. It is surprising to note that the alleged act of forgery related to the Court’s record and that too, by the staff of the Court itself. The allegations were of grave in nature but the case has been handled in a cold manner. The same could have been sent to the police for investigation on an F.I.R. being made to the police but that was not done. The alleged forgery was brought to the notice of the Magistrate on 18-11-82 when P.W. 1 one of the Advocates of the Bar reported to the Magistrate that some of the staff of the Court had forged summons and were demanding illegal gratification from the innocent villagers alleged to be accused persons in some cases which had long since been disposed of. On receipt of such a complaint which was oral in nature, it was incumbent on the part of the Magistrate to record the statement of the complainant and proceed with according to law. But there is no written complaint in the present case nor the oral statement of Advocate (P.W. 2) who handed over the summons to the Magistrate was also recorded by the Magistrate so as to proceed with the case. That apart, having been found by the Magistrate himself (who has been examined as P.W. 5) that his signature had been forged on the exhibits 1 to 1/63, the summons, all endeavour should have been made during the course of the trial to send the documents to the Handwriting and Finger Print Expert for comparison of the handwriting with a view to find out whether any of the accused persons had committed the act of forgery. As has been held in the case reported in 1974 Cut LR (Cri) 545 (Binayak Das v. State of Orissa), opinion of the handwriting expert is absolutely necessary to prove the charge of forgery against the accused.
8. Since on the facts of the case, I find that the prosecution has failed to prove the forgery, conviction of accused S.K. Padhy cannot be sustained particularly when the person (accused Tripathy) alleged to be the mastermind behind the act has been acquitted of the charges. Accused L.N. Mohanty has been convicted under Section 471 of the Penal Code for having utilised the summons knowing them as forged documents. But since forgery has not been proved, no liability can be attributed to Sri Mohanty and therefore, Sri Mohanty is also acquitted of the charges.
9. The learned Magistrate in para-14 of the judgment gave out his reasons that since the villagers after being asked by the accused persons to pay the amount immediately contacted their advocate to know the real state of affairs and that they did not part with any money so demanded by the accused persons, there was no case of cheating. Since all the accused persons have been exonerated from the rigor of Section 420 of the Penal Code, there is no scope for taking a different view in the matter.
It is not necessary on my part to discuss the two decisions cited by the learned Standing Counsel for the State in view of the fact that I have taken a view other than the one taken by the lower Courts that Ext. 2 does not amount to a confessional statement by the accused because as already discussed, the statement itself does not in clear terms admit the guilt of the accused or the facts constituting the offence of forgery.
10. There being serious error in appreciating the case as discussed above and departure from the settled principle of law laid down by the Supreme Court and by this Court, the judgment of the Courts below are liable to be set aside and are hereby set aside.
In the instant result, the revisions are allowed. The orders of conviction and sentence passed against the petitioners are set aside. Bail-bonds executed stand discharged.
