ABDUL AZIZ Vs. STATE

JUDGEMENT

(1.) This revision is filed as against the judgment passed in CA.No.40 of 2015 on the file of the learned I Additional District and Sessions Court, Erode dtd. 28/3/2018, thereby confirmed the judgment passed in CC.No.798 of 2010 dtd. 12/5/2015 on the file of the learned Judicial Magistrate-III, Erode, thereby convicted the petitioner for the offence punishable under Ss. 120(B), 471, 420 r/w 109, 468 r/w 109 of IPC.

(2.) The case of the prosecution is that during the first week of December 1993, at Sadgar Lodge, Church Gate, Mumbai City, the appellant herein and the first accused Salim Siraj Gillani and the third accused committed criminal conspiracy by entering into an agreement to do certain acts or offences of committing forgery of stolen Bank demand drafts, using them as genuine and cheating the financial institutions and others in Tamilnadu by encashing them through fraudulent means. In pursuance of the said conspiracy, the first accused Salim @ Siraj Gillini committed forgery by filling up of two blank demand drafts with serial No.001707 and 001710 which he obtained as stolen properties from Bank of India at Nagapada Branch at Mumbai City to the value of Rs.4,86,200.00 and Rs.4,91,400.00 in favour of the fictitious names of Usha Traders and Lakshmi Enterprises respectively purporting to have been genuinely issued by the said Bank of India, Nagpada Branch, Mumbai intending that the same should be used for the purpose of cheating by fraudulent encashment. On 24/12/1993, the accused A4 Muthukrishnan Oil Stores situated at Ettayapuram, Tuticorin, this appellant/accused who is the second accused herein handed over the said two forged demand drafts to A3 and A4 for using the same as genuine and cheating the financier at Erode. But both A3 and A4 handed over the same to A5, A6 and the approver witness Dhayanidhi on 27/12/1993 at the said Shop of A4 for the same purpose.

(3.) The learned counsel for the petitioner would submit that neither charges nor witnesses have proved the overt act of the petitioner for the alleged conspiracy held at Mumbai. There was no link to connect the petitioner with the offence as alleged by the prosecution. PW3 did not even whisper anything about the overt act of the petitioner. The trial court convicted the petitioner only on relying Ex.P18 which was marked through PW5 i.e. the Judicial Magistrate. Ex.P18 is nothing but statement recorded under Sec. 164 of Cr.P.C. and it cannot be used as substantial piece of evidence. Only on the strength of Ex.P18, the petitioner was convicted by the courts below, though PW3 did not even whisper about the overt act of the petitioner. The statement recorded under Sec. 164 of Cr.P.C. of PW3 has no legal basis for want of certificate under Sec. 164(4) of Cr.P.C. The confession of an accused will not bind the co-accused unless he has been tried along with other accused. The evidence of PW3 has no significance since he has not even identified the petitioner as an accused in the court. The evidence of PW3 cannot be the basis for the conviction in view of the presumption under Sec. 114(b) of Evidence Act. Unfortunately both the courts below relied on the confession statement recorded under Sec. 164 Cr.P.C. of PW3 and the deceased A3. Therefore, the conviction cannot be sustained as against the petitioner. In support of his contention, he relied upon the following judgments: