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2007 DIGILAW 198 (CAL)

BASIRUL HAQUE v. CHAND MOHAMMAD

2007-03-21

PARTHA SAKHA DATTA

body2007
( 1 ) THE order dated 5-10-1999 passed by learned Additional Sessions Judge of Kandi in the district of Murshidabad in criminal Motion No. 6 of 1999 setting aside thereby the order dated 12-2-1998 passed by the learned SDJM (now ACJM) Kandi in c. R. Case No. 404 of 1980 whereby the learned SDJM discharged the accused persons under section 245 (3) of the Cr. P. C. is under challenge. ( 2 ) ONE Chand Mohammad who is the opposite party No. 1 herein lodged a complaint with the learned SDJM, Kandi on 23-4-1980 alleging forgery of one sale deed being No. 5177 of 1976 relating to immovable property belonging to his wife Rowsonara begam. The petitioner No. 2 herein allegedly executed the deed by impersonating herself as Rowsonara Begam in respect of the disputed property in favour of the petitioner no. 1 Basirul Haque and in that deed the petitioner No. 3 was a witness and petitioner no. 4 was the deed-writer and the allegations were that they all acted in conspiracy with each other so as to have a forged deed of sale executed to defraud the said Rowsonara begam. ( 3 ) DURING the pendency of the case the complainant made a prayer for examination by comparison of the L. T. Is. of Rowsonara begam, wife of the complainant and of accused petitioner No. 2 Arjena Bibi as would be found in the deed and the learned trial court allowed the prayer. Arjena Bibi refused to give her L. T.. and ultimately the admitted L. T. Is. of Rowsonara Begam was taken by the Court for comparison and examination of the L. T. Is. with those appearing in the questioned document. Now according to the petitioners before this Court since during four years from the date of appearance of the accused persons no evidence could be tendered by the complainant they moved before the learned. SDJM for discharge under Section 245 (3) of the Cr. P. C. and the learned Magistrate rightly discharged them by the order dated 12-2-1998 and it was wrongly interfered with by the learned Additional Sessions Judge by the impugned order dated 5-10-1999. SDJM for discharge under Section 245 (3) of the Cr. P. C. and the learned Magistrate rightly discharged them by the order dated 12-2-1998 and it was wrongly interfered with by the learned Additional Sessions Judge by the impugned order dated 5-10-1999. ( 4 ) LEARNED SDJM observed that the complainant could not produce any evidence within a period of four years from the date of appearance of the accused and the dispute in respect of the opinion of the expert was an extraneous matter and there was no evidence of the complainant and its witnesses within a period of four years. Learned sdjm observed that it appeared to him that the complaint had no interest in the matter and, therefore, he discharged the accused persons under Section 245 (3) of Cr. P. C. ( 5 ) LEARNED Additional Sessions Judge by a lengthy 15 page judgment set aside the order of the learned SDJM on the ground as would be discussed in the sequel. ( 6 ) THE point for consideration is whether the learned Additional Sessions Judge was right in setting aside the order of the learned sdjm whereby the learned SDJM discharged the accused persons under Section 245 (3) of the Cr. P. C. ( 7 ) I have heard Mr. Yamin Ali, learned advocate for the petitioner and Mr. Abhijit basu, learned Advocate for the O. P. No. 1 and have gone through the order of the learned SDJM, the order of the learned Additional Sessions Judge and the petition of complaint as also other materials. ( 8 ) THE undisputed position is that the complainant moved for comparisan of admitted signature/lti of Rowsonara Begam, lti of the petitioner No. 2 with the disputed lti/signature in the deed of sale. The petitioner No. 2 refused to give her. The LTI of Rowsonara Begam was taken for comparison with the LTI in the disputed sale deed but the matter of the fact is that the questioned documents and L. T. Is. of Rowsonara begam were found missing from the Court below which gave rise to criminal Misc. Case no. 70 of 1987 which was, however, disposed of with the direction to expedite the examination of the documents by experts. Learned judicial Magistrate of Kandi again took L. T. Is. of Rowsonara begam were found missing from the Court below which gave rise to criminal Misc. Case no. 70 of 1987 which was, however, disposed of with the direction to expedite the examination of the documents by experts. Learned judicial Magistrate of Kandi again took L. T. Is. of Rowsonr Begam on 10-4-1992 and passed an order for forwrding the same along with the questioned documents and TR challan to the Finger Print Expert. It was revealed subsequently that no documents were at all sent to the handwriting experts and the documents were again found missing. Then the Judicial Magistrate passed an order directing despatch of the document along with the LTI of Rowsonara Begam to the Finger Print Expert. When the documents were detected to be missing the learned Magistrate directed the complainant as to which of the documents were required for sending for such examination by expert with the LTI of Rowsonara Begam but no action was taken about tracing out the lost documents. Then again came another misc. Case being No. 24 of 1993 for transfer of the case from the learned Judicial Magistrate to some other Court and the case was transferred to learned SDJM, Kand. There was an order to enquire into the allegations into the missing of the documents and fixing up of responsibility. Learned SDJM directed the Bench Clerk of the Court of the learned Judicial Magistrate to trace out the missing documents and report compliance by 9-8-1994 but no compliance was made. Meanwhile, a sealed tin box containing some documents were received from the learned cjm. Berhampore which was sent with reference to Misc. Case No. 24 of 1993 but in the tin box the sale deed was found but admitted LTI of Rowsonara Begam was not found. A tin box was again sealed and kept in the custody of the clerk-in-charge. Then again the complaint made another prayer for taking L. T. Is. of the accused No. 2 Arjena bibi which was rejected on 1 -8-1995. Again, the Court held that as this was a case of forgery the opinion of handwriting expert was necessary. The Court received a letter of Finger Print Bureu intimating that no document was received at their end. However, there were correspondences between the Finger Print Burea and the trial Court. No endeavour was made to send the questioned documents and the admitted L. T. Is. The Court received a letter of Finger Print Bureu intimating that no document was received at their end. However, there were correspondences between the Finger Print Burea and the trial Court. No endeavour was made to send the questioned documents and the admitted L. T. Is. of Rowsonara Begam till the date of the impugned order of the learned Magistrate dated 12-2-1998 whereby the accused was dischrged. Learned Additional Sessions judge rightly observed that no positive steps were taken for sending the question documents and admitted L. T. Is. of Rowsonara begam to Finger Print Bureu and the matter was not pursued nor any responsibility was fixed. What is more important is that no date or dates was fixed for adducing evidence since the learned Court of SDJM came to be in sessions of the case for the purpose of trial. ( 9 ) HAVING gone through the impugned order it clearly appears that the delay in progress of the trial was not at all due to the any fault of the complainant. It was office of the learned trial Court that accounted for delay in the commencement of the trial. Once L. T. Is. of Rowsonara Begam which were taken initially were lost. Again a set of l. T. Is. were taken and they also could not be traced out. Again questioned documents could not be traced out and they could/be revealed at a much later date from a tin box which was received by the learned CJM, murshidabad before whom prayer was made for transfer of the case. Lot of time was spent in making correspondences with Finger Print bureu and the learned SDJM without adverting to all these circumstances and facts discharged the accused holding that the complainant was not interested to proceed with the case. Learned SDJM made a very incorrect observation that opinion or any finding of the handwriting expert is a matter extraneous to the case and the learned additional Sessions Judge has rightly observed that since this is case of forgery the opinion of the handwriting expert who was called upon to compare the admitted signature with the disputed signature cannot be said to be a matter extraneous to the fact-in-issue. The observation of the learned sdjm that the complainant failed to show his interest by adducing evidence during the span of four years of appearance of the accused is not supported by the record of the learned trial Court on the ground that the considerable period of time was wasted in the matter of sending or not sending the questioned documents to the handwriting expert and missing of documents was detected at a very later date. Therefore, it cannot be said that the learned Additional Sessions judge was wrong. It cannot be said that the intention of the complainant was to delay the matter willfully. The learned sdjm completely lost sight of the fact that it was his office which did not expeditiously perform the ministerial job. In the decision reported in 2004 (3) CHN 89 it has been held by a learned Judge of this Court that there cannot be any mechanical discharge under section 245 (3) and the reasons for delay have to be ascertained and examined. In this case when the reasons are examined it appears that the complaint was not at all at fault. ( 10 ) THUS, the order of discharge of the learned SDJM was absolutely bad and illegal and the learned Additional Sessions judge rightly interfered with the order. ( 11 ) THE revisional application is devoid of merit. The application is dismissed. The order of the learned Additional Sessions judge dated 5-10-1999 is affirmed. ( 12 ) LET each copy of the judgment shall be sent to the learned Additional Sessions judge and the learned SDJM, Murshidabad with direction to the later Court to take appropriate steps in the matter of trial and disposal of the case according to law. ( 13 ) CRIMINAL Section is directed to supply xerox certified copy of this judgment as early as possible. Application dismissed. .