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2006 DIGILAW 69 (MAD)

State by Public Prosecutor v. Subramanian

2006-01-18

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Criminal Appeal filed under Section 378 of Criminal Procedure Code against the judgment of acquittal passed in Special Case No.3 of 1993 dated 8.4.1996 on the file of the Special Judge and Additional District Judge-cum-Chief Judicial Magistrate, Chengalattu.) This appeal is filed by the State challenging the acquittal of the respondent/accused in Special Case No.3 of 1993 on the file of the Special Judge and Additional District Judge-cum-Chief Judicial Magistrate, Chengalattu as per the judgment dated 8.4.1996 2. The respondent/accused was charged in respect of the offences punishable under Section 120B read with Sections 420, 419, 467 and 471 read with Section 467 I.P.C. and Section 82(c) and (d) of Indian Registration Act and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act and after trial, the accused was found not guilty and accordingly acquitted, which is under challenge in this appeal. 3. The brief facts for the disposal of the appeal are as follows:- "(a) In Korattur village 7.91 acres of Government poramboke land classified as grazing ground poramboke in Saidapet Taluk and there was a ban on converting this poramboke land into any other classifications of poramboke land. The deceased Pattaiyan, who is the father of P.W.8 and P.W.9, Ex-serviceman was in encroachment of the land to an extent of 2.50 acres and also was paying penal charges to the land in possession. (b) The respondent/accused (hereinafter referred to as "the accused") was working as Village Administrative Officer of Nerkundram village and was the erstwhile Karnam of Korattur village. The accused in his capacity as Village Administrative Officer and being a public servant, involved in the offences of forging valuable securities, dishonestly using the forging documents as genuine and cheating by impersonation. (b) The respondent/accused (hereinafter referred to as "the accused") was working as Village Administrative Officer of Nerkundram village and was the erstwhile Karnam of Korattur village. The accused in his capacity as Village Administrative Officer and being a public servant, involved in the offences of forging valuable securities, dishonestly using the forging documents as genuine and cheating by impersonation. During the years 1987 and 1988, the accused entered into a criminal conspiracy with the deceased Pattaiyan, P.W.1 Rathinam and P.W.2 Ponnuvel and in March, 1987, the accused along with the deceased falsely represented to K.C.R. Durai, a real estate dealer, P.W.5 that the land in Survey No.787/1B was available to an extent of 3 acres and was in possession of the deceased Pattaiyan, who was having title deeds to sell the same and by suppressing that it was grazing poramboke land and the deceased Pattaiyan had no title over the property, the accused dishonestly induced P.W.5 to purchase the land and entered into a formal agreement between the deceased and P.W.3, who is an associate of P.W.5 and also received advance amount (c) During May, 1987, the accused along with the deceased Pattaiyan committed forgery of the valuable security by preparing a document as if it was partition deed dated 19.5.1987 (Ex.P-1) between the deceased Pattaiyan and his son P.W.8 and daughter P.W.9 in respect of the above said lands to an extent of 2.40 acres. The accused signed the document as if he was a registered document writer by furnishing false registration number. The accused got the document registered at North Madras Sub Registrar Office as document No.1544/97. Subsequently, the accused used the said partition deed as genuine document and produced the same to P.W.5 to use it as a parent document for subsequent registration in respect of the said lands. The accused dishonestly induced P.W.5 to prepare a lay-out for the said lands for the purpose of selling as house-sites to the public at an average rate of Rs.12,000/- per plot. (d) The deceased Pattaiyan died on 19.8.1987. Thereafter, the accused along with P.Ws.1 and 2 committed cheating of impersonation substituting P.W.2 in the place of the deceased Pattaiyan and forced him to sign as the deceased Pattaiyan before the Anna Nagar Sub Registrar's Office on 20.8.1987, 15.9.1987 and 21.9.1987 respectively and created impression as if they were actually executed by the deceased Pattaiyan. Thereafter, the accused along with P.Ws.1 and 2 committed cheating of impersonation substituting P.W.2 in the place of the deceased Pattaiyan and forced him to sign as the deceased Pattaiyan before the Anna Nagar Sub Registrar's Office on 20.8.1987, 15.9.1987 and 21.9.1987 respectively and created impression as if they were actually executed by the deceased Pattaiyan. Then the accused executed false sale deeds with the help of P.Ws.1 and 2 and thus the accused as a public servant abused his official position as Village Administrative Officer and obtained Rs.20,001/- as advance during March, 1987 and subsequently received Rs.3,72,000/- towards sale price amount of 30 plots at the rate of Rs.12,000/- per plot and accordingly, the accused was charged for the offence under Section 120B read with Sections 420, 419, 467 and 471 read with Section 467 I.P.C. and Section 82(c) and (d) of Indian Registration Act and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act." 4. The trial Court examined P.Ws.1 to 45 and marked Exs.P-1 to P-32 on the side of the prosecution and Ex.D-1 was marked on the side of the accused. No witness was examined on the side of the accused. 5. The trial Court, considering such evidence let in on either side, found the accused not guilty and accordingly acquitted the accused in respect of the charges framed against him. The State, aggrieved against such acquittal of the accused has filed this appeal. 6. Even though notice served on the accused and several adjournments were given, the respondent/accused has not appeared and so Mr.N.Duraiswamy, advocate was appointed as Amicus Curiae to conduct the case on behalf of the accused. 7. Heard Mr. V. Madhavan, learned Government Advocate (Criminal side) appearing for the State and Mr. N. Duraiswami, advocate appointed as Amicus Curiae appointed to conduct the case on behalf of the respondent/accused. 8. Learned Government Advocate (Criminal side) vehemently argued that the acquittal of the accused in respect of the charges levelled against him is improper, in view of the fact, the prosecution has clearly established the case and proved beyond doubt by examining the witnesses and marking the documents on the side of the prosecution. 8. Learned Government Advocate (Criminal side) vehemently argued that the acquittal of the accused in respect of the charges levelled against him is improper, in view of the fact, the prosecution has clearly established the case and proved beyond doubt by examining the witnesses and marking the documents on the side of the prosecution. In this regard, the learned Government Advocate further submitted that the case of the prosecution is amply supported by the approvers P.Ws.1 and 2, who have clearly spoken about the conspiracy entered into between them and the accused along with the deceased Pattaiyan and the cheating committed by forging the document, viz., the partition deed Ex.P-1 dated 19.5.1987 executed between the deceased Pattaiyan and his son P.W.8 and daughter P.W.9 as if the deceased pattaiyan had title in respect of the lands to an extent of 2.40 acres in Survey No.787/1B of Korattur village out of 7.91 acres of Government poramboke land classified as grazing ground poramboke in Saidapet Taluk and there was a ban on converting this poramboke land into any other classification of poramboke land and which was given to real estate dealer P.W.5 for being used as a parent document and on the death of Pattaiyan on 19.8.1987 by impersonating P.W.2 that he is the deceased Pattaiyan created sale deeds on three dates, viz., 20.8.1987, 15.9.1987 and 21.9.1987 and received advance amount of Rs.20,001/- and subsequently, received Rs.3,72,000/- towards sale price of 30 housing plots and such evidence of P.Ws.1 and 2 is corroborated by P.W.5. In this regard, the learned Government Advocate further submitted that merely because it is stated by P.W.5 that he is not having bank account, the observation made by the trial Court that the evidence of P.W.5 is unbelievable, does not stand to reason, in view of the fact that the deceased Pattaiyan received Rs.1,000/- in cash from P.W.3 and a post dated cheque for Rs.19,000/- from P.W.4, which was handed over to the accused. It is further argued that on the death of Pattaiyan, the accused used his legal heirs, viz., his son P.W.8 and daughter P.W.9 for selling the land and P.W.5 has also spoken the fact that for sale of each plot, he gave Rs.12,000/- to the accused and P.W.8 and P.W.9 also stated that they were paid at the rate of Rs.1,000/- to Rs.2,000/- whenever they signed in the sale deeds as per the direction of the accused. The observation of the trial Court that the accused only helped in registration of the sale deeds, is also attacked by the learned Government Advocate that if that be so, there was no necessity for the accused to be present in all the days of registration in respect of the said transactions. Inasmuch as P.W.5 is a real estate businessman, to retain his reputation in such capacity he returned the amount to the purchasers on coming to know that the land purchased by them is poramboke land and therefore, the observation of the trial Court for returning the amount is improper. Then, it is pointed out by referring to the evidence of P.W.4, P.W.5, P.W.38 and P.W.45 that the sample handwriting and signature of the accused tallies with the partition deed Ex.P-1 as found by Hand Writing Expert P.W.38. Then, it is argued that though the Investigation Officer P.W.45 has stated in his evidence that the accused has served as Village Karnam of Korattur village during the year 1982, the accused himself admitted in his statement dated 26.3.1990 that he was the Village Administrative Officer of Korattur village during the year 1987-88. Then, it is argued that though the Investigation Officer P.W.45 has stated in his evidence that the accused has served as Village Karnam of Korattur village during the year 1982, the accused himself admitted in his statement dated 26.3.1990 that he was the Village Administrative Officer of Korattur village during the year 1987-88. As regards the observation of the trial Court that though the F.I.R. was registered against A1 to A4 and after investigation charges were levelled against this accused alone is not proper, the learned Government Advocate submitted that the irregularities committed by A1, A2 and A4 in the F.I.R. relates to an entirely different transaction and with regard to issue of patta and therefore, they were proceeded with the disciplinary proceedings and accordingly after investigation, the accused alone (A3 in the F.I.R.), has been rightly proceeded in respect of the charges levelled against him, since it is the accused as a public servant forged the document as if the deceased Pattaiyan had title to the grazing poramboke land in respect of 2.50 acres by creating/forging the partition deed Ex.P-1 as if it was between the deceased Pattaiyan and his son P.W.8 and daughter P.W.9 and gave it to P.W.5 as parent document and who on the basis of the said document sold the 30 housing plots and also made P.W.8 and P.W.9 to sell the housing plots as legal representatives of the deceased Pattaiyan and also made P.W.2, the approver to execute the document on three days, i.e., 20.8.1987, 15.9.1987 and 21.9.1987 by impersonating himself as the deceased Pattaiyan after his death on 19.8.1987. 9. Mr. N. Duraiswamy, learned advocate appointed as Amicus curiae to conduct the case on behalf of the accused, supporting the judgment of the acquittal, submitted that the prosecution failed to prove the guilt of the accused in respect of the charges levelled against him. 9. Mr. N. Duraiswamy, learned advocate appointed as Amicus curiae to conduct the case on behalf of the accused, supporting the judgment of the acquittal, submitted that the prosecution failed to prove the guilt of the accused in respect of the charges levelled against him. The learned advocate vehemently attacked the removal of A1, A2 and A4 against whom also the F.I.R. was registered and filing charge-sheet against the accused alone, who was A3 as per F.I.R. The learned advocate submitted that the accused only helped in registering the sale deeds and the prosecution failed to prove that during the relevant time the accused was the Village Administrative Officer and in such capacity and being a public servant, he committed the offences, viz., forging and cheating by creating document Ex.P-1 partition deed for using the same as parent document of the deceased Pattaiyan and other documents conspiring with the approvers P.Ws.1 and 2 and the deceased Pattaiyan. 10. Ex.P-19, the proceedings dated 21.12.1992, as per which permission was granted by the District Registrar, Central Madras for laying prosecution against the accused and Ex.P-26, the proceedings dated 27.5.1992, as per which sanction was accorded by the Sub Collector, Saidapet, under Section 19(1)a) of the Prevention of Corruption Act, 1988 for prosecution against the accused, would reveal that the accused, viz., the respondent worked as Village Administrative Officer, Pudupalayam villge, Gummidipoondi Taluk from 25.5.1984 and as Village Administrative Officer, Nerkundram village, Ponneri Taluk from 11.11.1987 till 29.11.1988, on which date he was placed under suspension, and as such the accused was a public servant 11. The deceased Pattaiyan, father of P.Ws.8 and 9 encroached and was in occupation of 2.40 acres of land in Survey No.787/1B in Korattur village, Saidapet Taluk, which is a Government poramboke land classified as grazing poramboke land. The deceased Pattaiyan, father of P.Ws.8 and 9 encroached and was in occupation of 2.40 acres of land in Survey No.787/1B in Korattur village, Saidapet Taluk, which is a Government poramboke land classified as grazing poramboke land. To sell the said lands by converting them into house-plots, the accused conspired with the approvers P.Ws.1 and 2 and also P.W.5, real estate dealer and accordingly six sale deeds came to be executed, viz., one document on 20.8.1987, three documents on 15.9.1987 and two documents on 21.9.1987 as if they were executed by the deceased Pattaiyan, who died on 19.8.1987 by making P.W.2 to impersonate as if he was the deceased Pattaiyan and the accused also made the document Ex.P-1 dated 19.5.1987 registered partition deed as if there was partition between the deceased Pattaiyan and his son P.W.8 and daughter P.W.9, and produced the document Ex.P-1 to P.W.5 who used the document as if it was a parent document. Pursuant to the said conspiracy, sales were effected to the purchasers P.Ws.10 to 29 for sale of 30 housing plots and the accused received sale price amount of Rs.3,72,000/- at the rate of Rs.12,000/- per plot in which Rs.1,000/- to Rs.2,000/- were paid to P.Ws.8 and 9 every time whenever they signed in the sale deeds executed by them as owners and legal representatives of the deceased Pattaiyan. 12. P.Ws.1 and 2, against whom, initially F.I.R. was registered and who turned as approvers as per the proceedings of the Chief Judicial Magistrate, Chengalpattu as seen in Exs.P-7 and P-8 both dated 14.8.1991, have supported the case of the prosecution in their evidence about the registration of the partition deed Ex.P-1 dated 19.5.1987 between the deceased Pattaiyan and his son P.W.8 and daughter P.W.9 in respect of the land 2.40 acres in Survey No.787/1B in Korattur village, Saidapet Taluk, which is a Government poramboke land classified as grazing poramboke land, to which the deceased Pattaiyan and his son P.W.8 and daughter P.W.9 had no title and which land was in possession of the deceased Pattaiyan by paying penal charges and about the execution of Exs.P-2 to P-5, P-8 and P-9 by P.W.2, the sister's son of the deceased Pattaiyan, who actually died on 19.8.1987 even before executing the said sale deeds, and as per the request made by the accused to impersonate as such. 13. 13. P.Ws.3 and 4, who have been assisting in the real estate business of P.W.5, have stated in their evidence that the sale agreement was executed between P.W.3 and the deceased Pattaiyan for the benefit of P.W.5 in respect of the sale of housing plots and also stated about the receipt of Rs.20,000/- by way of advance, viz., Rs.1,000/- in cash and the remaining amount of Rs.19,000/- by way of cheque issued by P.W.4 to the accused. 14. The purchasers P.Ws.10 to 29 have stated in their evidence about the return of the sale price amount by P.W.5 to them since there was a defective title in respect of the land. As regards the execution of Exs.P-2 to P-5, P-8 and P-9 by P.W.2 by impersonating himself as if he was the deceased Pattaiyan abetted by the accused, the same has been proved with the evidence of P.Ws.1 and 2. 15. The Hand Writing Expert P.W.38, who after comparing the admitted signature of P.W.2 signed as Pattaiyan with the signatures available in Exs.P-2 to P-5, P-8 and P-9 filed, report Ex.P-22 that the signatures in the said sale deeds as Pattaiyan were actually made by P.W.2. Pattaiyan died on 19.8.1987 as evidenced from Ex.P-29 Obituary card and Ex.P-30 death certificate. P.W.3 also stated that as agreed, Rs.19,000/- was paid in cash in three instalments to the accused and the cheque issued for the said amount to the accused was not returned by him. 16. Pattaiyan died on 19.8.1987 as evidenced from Ex.P-29 Obituary card and Ex.P-30 death certificate. P.W.3 also stated that as agreed, Rs.19,000/- was paid in cash in three instalments to the accused and the cheque issued for the said amount to the accused was not returned by him. 16. Therefore, the prosecution registered the FIR in respect of the offences committed by the accused relating to the charges levelled against him, viz., the accused, in his capacity as Village Administrative Officer created the partition deed Ex.P-1 between the deceased Pattaiyan and his son P.W.8 and daughter P.W.9 as if the deceased Pattaiyan had title to 2.40 acres of land in Survey No.787/1B in Korattur village, Saidapet Taluk, which is a Government poramboke land classified as grazing poramboke land, for using it as a parent document by P.W.5, real estate dealer and by falsely representing that the deceased Pattaiyan had title to the said land received the sum of Rs.1,000/- as advance and also remaining amount of Rs.19,000/- for which amount initially the cheque was issued to him and which was not returned after payment of the said amount and accordingly entered into sale agreement which was not marked as if it was between P.W.3 and the deceased Pattaiyan and by using the partition deed Ex.P-1 that as per the document the deceased Pattaiyan had got title to the said land, as a parent document made P.W.5 to sell the land plotting out as housing plots and also sold 30 housing plots to purchasers P.Ws.10 to 29 and by impersonating P.W.2 made six sale deeds executed, viz., Exs.P-2 to 5, 8 and 9 by P.W.2 impersonating as his maternal uncle, the deceased Pattaiyan within a period of one month i.e., one sale deed on 20.8.1987, three sale deeds on 15.9.1987 and two sale deeds on 21.9.1987 and who died on 19.8.1987 as evidenced from Exs.P-29 obituary card and P-30 death certificate of the deceased Pattaiyan. 17. But the trial Court not considering all these aspects in an erroneous approach, recorded finding that the accused has not committed the offences and the charges levelled against him, resulting the acquittal of the accused and such finding being improper is to be set aside. Necessary permission was made under Ex.P-19 for prosecuting the accused and sanction was accorded under Ex.P-26 by the Sub Collector, Saidapet. Necessary permission was made under Ex.P-19 for prosecuting the accused and sanction was accorded under Ex.P-26 by the Sub Collector, Saidapet. Therefore, by setting aside the finding of the trial Court, the accused is found guilty for the offences punishable under Section 120B read with Sections 420, 419, 467 and 471 read with Section 467 I.P.C. and Section 82(c) and (d) of Indian Registration Act and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act. 18. The offences are related to the year 1987 for which case was registered under Ex.P-28 in Crime No.1/AC/89/CH on 5.7.1989 and after trial in Special Case No.3 of 1993 on the file of the Special Judge and the Additional District Judge-cum-Chief Judicial Magistrate, Chengalpattu, the respondent/accused was acquitted as per the judgment dated 8.4.1996. 19. In STATE BY FOOD INSPECTOR v. KUMARESAN (1992 L.W. (Crl.) 392), this Court has held as follows: "The question that now looms large is as to whether the verdict of acquittal, which remained for quite a long period, could be disturbed by the reversal of the finding of learned trial Magistrate, as stated above. Taking into account the fact that the respondent/accused had been facing the mental agony of the Damocles' Sword of prosecution hovering over his head, right from the day of taking of the samples, till upto the time of rendering of the verdict of acquittal and again from the time of subsequent proceeding by way of appeal against acquittal till today, I feel it would not besides justice in not disturbing the verdict of acquittal, despite the fact that the finding of the trial Magistrate, on which the verdict of acquittal is based is set aside. I, therefore, allow the verdict of acquittal to remain as it is, without being disturbed, in the peculiar circumstances of the case." And in STATE BY PUBLIC PROSECUTOR v. PALANI (1997-2-L.W. (Crl.) 782), this Court has held as under: "The acquittal of the respondent / accused is not sustainable in law, and therefore, the same is liable to be set aside. Except pointing out the illegality committed by the Court below in acquitting the accused, the respondent/accused is not sentenced in any manner, in the appeal in view of the long lapse of time. The appeal is disposed of accordingly." 20. Except pointing out the illegality committed by the Court below in acquitting the accused, the respondent/accused is not sentenced in any manner, in the appeal in view of the long lapse of time. The appeal is disposed of accordingly." 20. In the result, following the judgments of this Court rendered in STATE BY FOOD INSPECTOR v. KUMARESAN (1992 Law Weekly (Crl.) 392) and STATE BY PUBLIC PROSECUTOR v. PALANI (1997-2-Law Weekly (Crl.) 782) (cited supra) and considering the facts that the offences are related to the year 1987 for which case was registered under Ex.P-28 in Crime No.1/AC/89/CH on 5.7.1989 and the case ended in acquittal as per judgment dated 8.4.1996 and also the facts that nearly 18 years have elapsed and the mental agony suffered by the respondent/accused, this Court is of the view that the acquittal of the accused need not be disturbed. 21. This Court appreciate the assistance rendered by Thiru N. Duraiswamy, the Amicus curiae appointed in this appeal, who argued the case well after preparing the case well. Rs.2,000/- is fixed as the fee of Thiru N.Duraiswamy, Amicus curiae appointed by this Court, which is payable to him by the Tamil Nadu Legal Aid Services Authority, High Court, Madras. 22. Accordingly, this appeal is disposed of.