Karnataka High Court

I K Narayana vs The State Of Karnataka on 15 November, 2012

Author: A.N.Venugopala Gowda
1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

®
DATED THIS THE 15th DAY OF NOVEMBER, 2012

BEFORE

THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

CRIMINAL REVISION PETITION NO.1067/2010

BETWEEN:

I.K. Narayana,
S/o. Kenchareddy,
Aged about 41 years,
R/o. No.447, 1st Cross,
13th Main, Manjunatha Nagara,
West of Chord Road, Bangalore.
... PETITIONER
(By Sri Dinesh Kumar K. Rao, for
Sri R.B. Deshpande, Adv.)

AND:

The State of Karnataka,

By Basaveshwaranagara Police.
... 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 and order dated
23.09.2009 passed by the V Addl. CMM., Bangalore in
C.C.No.29789/2007 and order dated 3.7.2010 passed by
the P.O., FTC-XVI, Bangalore City in Crl.A.No.771/2009
and acquit the petitioner of the charges levelled against
him.
2

This Crl.R.P. coming on for final hearing this day, the

Court made the following:

ORDER

The petitioner was convicted by the Trial Court, under Ss.419, 471, 472 and 420 r/w
S.511 IPC. He was sentenced to undergo simple imprisonment for different periods and
also pay fine, under the aforesaid sections. The substantive sentences were ordered to run
concurrently. An appeal filed was dismissed by the Sessions Court with an observation
regarding sentence under S.472 IPC. Assailing the said Judgments, this criminal revision
petition has been filed.

2. In brief, the case of the prosecution was that, on 27.04.2007, at 11.30 a.m., the
petitioner was found driving a Ambassador Car bearing registration No.MEX-42, with
Karnataka Government nameplates having the Government emblem and stickers, on
Siddaiah Puranik Road, within the limits of Basaveshwaranagar Police Station. On
suspicion, when CW-1/PW-2 stopped the car and enquired, the petitioner was found
possessing seals and other documents and when questioned, he pretended to be an
Assistant Commissioner of Commercial Taxes and produced an identification card and
other documents and made to believe that he is a public servant. Upon enquiry, it was
learnt from the department of Commercial Taxes, that the petitioner is not working in the
department and thereby, dishonestly cheated both the public and the Government. CW-
1/PW-2 lodged a complaint/Ex.P4. CW-10/PW-5 registered a case and sent the
FIR/Ex.P22 to the Court and took up the investigation, which was later on taken over by
CW- 11/PW-6. CW-11 laid the charge sheet.

3. The accused denied the charge. During trial, the prosecution in order to establish the
charges, examined PWs.1 to 6, through whom Exs.P1 to P23 and MOs.1 to 18 was
marked. The accused was examined under S.313 Cr.P.C. Accused denied the
incriminating evidence and has not led any defence evidence. Learned Trial Judge, taking
into consideration the record of the case and the rival contentions, upon appreciation of
the evidence, found the accused guilty of the charged offences. Hence, a Judgment of
conviction was passed and the accused was sentenced to undergo imprisonment and also
pay fine.
4. The accused challenged the said Judgment by filing Crl.A.No.771/2009. Three
contentions urged for consideration by the accused, viz., (a) the Trial Court erred in not
properly assessing the evidence available on record;

(b) the Trial Court erred in concluding that the ingredients of Ss.419, 471, 472, 473 and
420 r/w 511 IPC are made out and; (c) the Trial Court committed an error in holding that
the prosecution has proved the guilt of the accused beyond all reasonable doubts, upon
consideration, having been negated and the appeal having been dismissed, this criminal
revision petition has been filed.

5. On behalf of the petitioner, Sri Dinesh Kumar K. Rao, learned advocate, raised the
same contentions. He further contended that the prosecution has not proved the alleged
acts of 'forgery', since, 'the seals' were not sent to an expert for furnishing of opinion and
also that the offence under S.467 IPC having not been proved, S.472 or 473 IPC is not
attracted. By placing reliance on the decision in the case of RAM JAS VS. STATE OF
U.P., AIR 1974 SC 1811, he contended that the finding of guilt recorded is illegal.
Alternatively, by placing reliance on an order dated 21.03.2012 passed in
Crl.A.No.882/2009 and connected cases, (Sri K.V. Harish & others Vs. State of
Karnataka), he submitted that the substantive sentences ordered in the matter being harsh,
a lenient view may be taken.

6. Sri Vijayakumar Majage, learned High Court Government Pleader, on the other hand,
submitted that the Trial Court and the Appellate Court have correctly analyzed the factual
position and in view of the credible evidence brought on record by way of examination of
PWs.1, 2, 3, 5 & 6 and the exhibited documents and the marked MOs.1 to 18, there is no
scope for interference in exercise of the revisional jurisdiction. He submitted that the oral
and documentary evidence brought on record by the prosecution has been correctly
appreciated and in view of the concurrent finding of guilt recorded by the Courts below,
the revision petition may be dismissed.

7. Perused the record. The point for

determination is:

"Whether the conviction of the accused for the offences under Ss.419, 471, 473, 420 r/w
S.511 IPC is justified?"

8. If a person cheats by pretending to be some other person, or representing that he is a

person other than he, then, such person can be charged with the allegation of 'cheating by
personation' (S.416 IPC) and punished under S.419 IPC.

9. If a person makes any false document with the intent to cause damage or injury to
public or to any person, or to support any claim or title, then he can be charged for an
offence of forgery (S.463 IPC) and can be punished under S.465 IPC. If a person commits
forgery for the purpose of cheating, then he can be punished under S.468 IPC.
10. If a person makes or counterfeits any seal, plate or other instrument for making an
impression, intending that the same shall be used for committing any forgery which
would be punishable under S.467 IPC or with such intent, is in possession any such seal,
plate or other instrument, knowing the same to be counterfeit, then he is punishable under
S.472 or S.473 IPC.

11. If a person, dishonestly induces another person to deliver any property or valuable
security or to do or omit to do something which he would otherwise not have done or
omitted, thereby commits an act of cheating and dishonestly deceives another, can be
punished under S.420 IPC.

12. A person commits the offence of 'attempt to commit a particular offence' when (i) he
intends to commit that particular offence; and (ii) he, having made preparations and with
the intention to commit the offence, does an act towards its commission; such an act need
not be the penultimate act towards the commission of that offence, but must be an act
during the course of committing that offence, S.511 IPC is attracted.

13. The evidence brought on record of the case by the prosecution has been noticed in
detail, in the Judgments passed by the Courts below.

14. PW-1, an Additional Commissioner of Commercial Taxes has said that, their office
has not issued any identity card to a person by name 'I.K. Narayana' and no such person
was working in their office. After verifying the rubber stamps, sent by the I.O., she has
issued the report Ex.P1, stating that the rubber stamps and the impressions found in Ex.P3
was not issued by their office.

15. PW-2 is the complainant. He has said that, on 27.04.2007, the petitioner was found
driving a Ambassador Car bearing No.MEX-42 (white colour) and when questioned, the
petitioner claimed that he is an Assistant Commissioner of Commercial Taxes and
produced in proof thereof, an Identity Card / Ex.P2. He has said that the car had the plates
showing the name- boards with the emblem of Karnataka Government. He has also said
about the documents, seals and other material objects found in the car. He lodged the
complaint Ex.P4. Evidence of PW-2 has been corroborated by PW- 3/Shiva Kumar, Head
Constable, Traffic Police Station, Vijayanagar.

16. PW-5 has said about the registration of case and the investigation done by her. PW-6
has said about the continuation of investigation and laying of the charge sheet.

17. Since, nothing material was elicited in the cross-examination of the said witnesses,
there being nothing placed on record to disbelieve the statements of PWs.1 to 3 and 5 &
6, which is trustworthy, the only inference that can be drawn is that the accused
has pretended to be a public servant holding the office of an Assistant Commissioner of
Commercial Taxes, despite knowing that he does not hold such office and in the said
assumed character has attempted to cheat the Government and the public. The offences
under Ss.170 IPC and 419 IPC overlap each other. Cheating by personation (S.419 IPC)
is an offence of general character, under which a person may pretend to be anyone, other
than what he really is. But, cheating by pretending to be a public servant (S.170  IPC) is a
specific offence, where one pretends to be a public servant and has all the ingredients of
cheating by personation under S.419 IPC.

18. The petitioner is the registered owner of Ambassador Car MEX-42 (white colour). He
was found driving the said vehicle on 27.04.2007 at 11.30 a.m., on Siddaiah Puranik
Road, within the limits of Basaveshwaranagar Police Station. The car had the plates
showing the name of the Karnataka Government, its emblem and stickers. The said car
being a privately owned vehicle, the accused could not have affixed to it, the plates
showing the name of Government of Karnataka with the Government emblem and the
stickers and used it on public road.

19. The petitioner was found in possession of Ex.P2, an identity card, resembling an ID
card issued to its officers, by the Head of the Department of Commercial Taxes,
Karnataka Government. Ex.P2 has the emblem of Government of Karnataka, name of the
department - 'Commercial Tax Department', along with the photograph and name of the
petitioner, his qualification, designation and also the office address of the Department of
Commercial Taxes. That apart, Ex.P2 contains a signature, name and designation of the
alleged issuing authority. PW- 1 has said that, Ex.P2 was not issued by their department.
Ex.P2 has been proved to be a fake identity card. The petitioner was also found in
possession of counterfeit seals, the impressions of which can be found in Ex.P3.

20. In the case of ABHAYANAND MISHRA Vs. STATE OF BIHAR- AIR 1961 SC
1698, the appellant was charged for the offences under S.420 read with S.511 IPC. The
Trial Court acquitted the accused of the charge of forging certificates but convicted of the
offence of 'attempting to cheat' in as much as, he, by false representations, deceived the
University and induced the authorities to issue the admission card, which, if the fraud had
not been detected, would have been ultimately delivered to the accused. In the appeal
filed before the Supreme Court, the accused raised two contentions, namely, (i) that the
facts found did not amount to the accused committing an attempt to cheat the University
but amounted just to his making preparations to cheat the University and (ii) even if the
accused had obtained the admission card and appeared at the examination, no offence of
cheating under S.420 IPC would have been committed, as the University would not have
suffered any harm to its reputation. While repelling the said two contentions and another
contention that the facts proved do not go beyond the stage of preparation for the
commission of the offence of 'cheating' and do not make out the offence of attempting to
cheat, it was held as follows:

" 11. ..... There is a thin line between the preparation for and an attempt to commit an
offence. Undoubtedly, a culprit first intends to commit the offence, then makes
preparation for committing it and thereafter attempts to commit the offence. If the attempt
succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is
said to have attempted to commit the offence. Attempt to commit an offence, therefore,
can be said to begin when the preparations are complete and the culprit commences to do
something with the intention of committing the offence and which is a step towards the
commission of the offence. The moment he commences to do an act with the necessary
intention, he commences his attempt to commit the offence. This is clear from the general
expression 'attempt to commit an offence' and is exactly what the provisions of
S.511 I.P.C., require. The relevant portion of S.511 I.P.C., is:
" Whoever attempts to commit an offence punishable by this Code ............. or to cause
such an offence to be committed and in such attempt does any act towards the
commission of the offence shall, where no express provision is made by this Code for the
punishment of such attempt be punished .....................". These provisions require that it is
only when one firstly, attempts to commit an offence and secondly, in such attempt, does
any act towards the commission of the offence, that he is punishable for that attempt to
commit the offence. It follows, therefore, that the act which would make the culprit's
attempt to commit an offence punishable, must be an act which, by itself or in
combination with other acts, leads to the commission of the offence. The first step in the
commission of the offence of cheating, therefore, must be an act which would lead to the
deception of the person sought to be cheated. The moment a person takes some step to
deceive the person sought to be cheated, he has embarked on a course of conduct which is
nothing less than an attempt to commit the offence, as contemplated by S.511. He does
the act with the intention to commit the offence and the act is a step towards the
commission of the offence.

12. It is to be borne in mind that the question whether a certain act amounts to an attempt
to commit a particular offence is a question of fact dependent on the nature of the offence
and the steps necessary to take in order to commit it. No exhaustive precise definition of
what would amount to an attempt to commit an offence is possible. "

21. In re Packianathan, AIR 1920 Madras 131, the accused was prosecuted for an offence
under S.419 r/w S.511 of the Penal Code. He was going to Ceylon and he used the permit
which stood in the name of one Kumaraswami, while his own name was J.Packianathan.
On seeing the permit, the Health officer issued a Health Certificate. It was held that the
Health Certificate was 'property' within the meaning of S.415 of the Penal Code and he
was held guilty of an offence under S.419 IPC.

22. In the case of LOCAL GOVERNMENT Vs. GANGARAM, AIR 1922 Nagpur 221,
the accused had obtained a certificate from the Deputy Inspector of Schools, by stating
untruly, that he had passed the examination. It was held that the certificate was 'property'
within the meaning of S.415 and that the accused was guilty of an offence punishable
under S.420 IPC.

23. The remissness on the part of the Investigation Officer, in not sending 'the seals' to an
expert for opinion, is not fatal to the prosecution case, since the offences under Ss.416,
419, 420 r/w 511 IPC have been well established. There is sufficient evidence
establishing the substratum of the prosecution case.

24. In the case of RAM JAS (supra), the accused were acquitted by the Sessions Court,
but, the order of acquittal was set aside in appeal by the High Court and the accused were
convicted and sentenced. In an appeal filed by the accused, noticing that there was delay
in filing FIR and that the Appellate Court was not justified in interfering where the view
taken by the Trial Court was reasonably possible, it was held that, the law only requires
that the Appellate Court, in reversing the order of acquittal, should be slow and
circumspect to disturb a finding of fact unless the Appellate Court is of the opinion that
the finding of fact is wrong and not borne out by the evidence. The ratio of decision has
no application to the instant case.
25. The Courts below, after noticing in detail the evidence brought on record, have rightly
found the accused guilty of the offences under Ss.419, 471, 472, 473 and 420 r/w
511 IPC. There is no reason of whatsoever nature for me to take a different view, than the
one arrived in the matter, by both the Courts below. The prosecution has established its
case against the accused beyond all reasonable doubts and the conviction of the petitioner
for the offences under Ss.419, 471, 473, 420 r/w 511 IPC is justified.

26. Now, the question of sentence alone remains. In K.V.HARISH AND OTHERS
(supra), the petitioners had been convicted by the Trial Court in respect of the offences
punishable under Ss.420, 465 and 471 of IPC and each of them had been sentenced to
various terms of imprisonment and payment of fine. The case of the prosecution against
the petitioners therein was that, in order to secure appointment for the posts of Primary
School Teachers, the accused had forged SSLC marks card/s and also produced Rural
Education certificate/s, though they had studied at Government Junior College, Kolar and
on the basis of the complaint lodged by the Deputy Director of Public Instructions, the
accused were brought on trial. The Trial Court found the accused guilty which was
confirmed in appeal. In the revision petition filed by the accused, the prayer was limited
for modification of sentence on the ground that large number of them were women
candidates and that they did not receive any salary though they were appointed on the
basis of the documents produced by them and that their services were terminated and the
incident having taken place more that twelve years ago and they have come from villages
and having been misguided, they prayed for modification of sentence of imprisonment by
imposing higher fine. The prayer having not been opposed by the learned Government
Pleader who appeared for the prosecution, noticing that more than twelve years has
elapsed, while maintaining the conviction, the accused were sentenced to undergo a day's
imprisonment/till raising of the Court and pay the fine. The decision has no application to
the case on hand. In the instant case, the trial Court convicted and sentenced the accused,
which was confirmed by the Appellate Court, with an observation that the accused should
have been held guilty of offence under S.473 instead of S.472 IPC.

27. The facts and evidence disclose the accused is an educated person, having had a good
background. His father was a high rank officer and had served in the Government of
Karnataka. There is no extenuating or mitigating circumstance of extreme poverty or
illiteracy. There is prior preparation undertaken to commit the offences. In view of the
premeditated intention of the accused, the case does not permit any leniency in the matter
of sentence. Therefore, the sentence imposed does not warrant any interference.

In the result, the petition being devoid of merit is dismissed. Bail and surety bond
executed are cancelled. The accused shall surrender to serve out the sentence.