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2007 DIGILAW 260 (PAT)

Tek Narain Rai v. State Of Bihar

2007-02-06

INDU PRABHA SINGH

body2007
Judgment I.P.Singh, J. 1. This is an appeal against the acquittal and it has been filed under the provisions of Sec. 378 of the Code of Criminal Procedure, 1973 (in short the Code). The appellant is the complainant whereas respondent nos. 2 to 5 were accused persons before the trial court. 2. This appeal against acquittal passed on 9.7.1990 in Complaint Case No. 66(C) of 1980 was passed by Shri Arun Kumar Sinha, Judicial Magistrate 1st Class, Danapur by which the learned Magistrate had acquitted the accused-respondents of the charges framed under Sections 120B, 466 and 474 of the Indian Penal Code. 3. Respondent nos. 2 to 5 have been charged with forgery with respect to a sale deed dated 27.4.1915 and/or its certified copies. This sale deed was executed by Baidya Nath Singh and Jagarnath Singh in favour of Mahabir Raut and Ram Bilash Raut. The forged certified copy of this sale deed was obtained by the respondent in 1976. In this forged certified copy the name of only Mahabir Raut was mentioned while the name of other vendee, namely, Ram Bilash Raut was omitted. Respondent nos. 2 to 4 are the descendents of Mahabir Raut and by getting this forgery committed they thought that their claim over the entire property of the sale deed of 1915 will be proved. This sale deed related to Plot No.867 measuring 67 decimals and plot no.852 measuring 1.29 decimals. Later on by private arrangement 98 decimals each were allotted to Mahabir Raut and Ram Bilash Raut. Ram Bilash Raut died issueless and Gulab Chand Raut, the father of the complainant came in exclusive possession of the property left behind by Ram Bilash Raut. After the death of Gulab Chand Raut his son the present appellant Tek Narain Rai came in possession of the property left behind him. Further prosecution case is that the respondents wanted to dispossess the appellant from Plot No.867 forcibly leading to a proceeding under 144 of the Code. Both the parties filed their respective show causes and for the first time in the year 1980 the respondent nos. 2 to 4 mentioned in their show cause that the entire land under sale deed dated 27.4.1915 was their. They also filed certified copy of the sale deed dated 27.4.1915 obtained in the year 1978 in which the name of only Mahabir Raut appeared as vendee. 2 to 4 mentioned in their show cause that the entire land under sale deed dated 27.4.1915 was their. They also filed certified copy of the sale deed dated 27.4.1915 obtained in the year 1978 in which the name of only Mahabir Raut appeared as vendee. On the strength of this forged certified copy of the sale deed they started claiming the entire vended land bearing plot nos. 867 and 852. The complainant-appellant filed a petition under Sec. 144 of the Code before the Sub Divisional Officer where the forged certified copy of the sale deed obtained in 1978 was seized by the Sub Divisional Officer and keep in safe custody. This proceeding under Sec. 144 of the Code was converted into a proceeding under Sec. 145 of the Code. 4. There was a Title Suit Mo.56/64/54/74 in which respondent Janak Rai was witness no.5. In his deposition he had stated that his father, Mahabir Raut and Ram Autar Rai both had purchased plot no.867 and 852 through the registered sale deed dated 27.4.1915. 5. In the complaint case the cognizance was taken and the accused respondents were charged under Sections 466, 120B and 474 of the Indian Penal Code. On behalf of the complainant four witnesses were examined and a number of documents were produced. In this case Ext.4/1 being forged certified copy of the sale deed dated 27.4.1915 was produced in which name of only Mahabir Raut appeared. This was written by respondent no.5, Ekram Hussain of the registry office, two years later on 31.3.1980 another certified copy of this sale deed dated 27.4.1815 (Ext.4/ 2) was also obtained in which the names of both Ram Bilash Rant am Mahabir Raut appeared. It has been marked as Ext .4/2. 6. From the judgment under appeal it is alleged that the forged copy obtained by acc used-respondent was not brought on the record although it was marked as Ext.4/1. The same was called for from the court of Sri R.K. Singh, Executive Magistrate, Danapur but could not be obtained. The original sale deed dated 27.4.1915 was not produced in court as the same was not asked for. However, the original register from the registration office was obtained and proved. No body from the registration office has been examined to prove the forgery though the documents in this connection were produced and proved. The original sale deed dated 27.4.1915 was not produced in court as the same was not asked for. However, the original register from the registration office was obtained and proved. No body from the registration office has been examined to prove the forgery though the documents in this connection were produced and proved. The finding of the learned court beiow are not correct and the case has wrongly ended in acquittal of the respondents. On these grounds it has been contended that this appeal be allowed and after hearing the parties the judgment of acquittal passed in Complaint Case No. 166(C) 1980 be set aside and the respondents may be sentenced in accordance with law. 7. The parties have been heard at length in this appeal. The first thing to be noticed in this connection is that respondent nos. 2, 3 and 4 have died during the pendency of this appeal. Thus only respondent no.5 is still alive apart from respondent no.1, State of Bihar. Since, however, various questions of law have been raised in this appeal I think it proper to decide questions even when respondent nos. 2, 3 and 4 are no longer alive. In the case all the accused persons were charged under Sections 466 and 120B of the Indian Penal Code. Respondent nos. 2, 3 and 4 were further charged under Sec. 474 of the Indian Penal Code. I will firstly take up for consideration the case of respondent no. 5, Ekram Hussain, Copyist of the Registry Office as the remaining private respondents are ajready dead. The allegation against him is that he was a party to the forgery committed in the registry office at the time of issue of certified copy (Ext.4/1) of the original sale deed of year 1915. While preparing the certified copy it is alleged that the name of other purchaser, namely, Ram Bilash Raut was dropped showing only Mahabir Raut as the sole purchaser. On behalf of the complainant four witnesses were examined. P.W.1 is Sushil Rai while RW. 2, Tek Narain Rai is the complainant-petitioner. A number of documents have also been filed in the case of which Ext.4/1 dated 1.3.1978 is the certified copy of the sale deed alleged to be forged. On behalf of the complainant four witnesses were examined. P.W.1 is Sushil Rai while RW. 2, Tek Narain Rai is the complainant-petitioner. A number of documents have also been filed in the case of which Ext.4/1 dated 1.3.1978 is the certified copy of the sale deed alleged to be forged. It has been pointed out to me that the original sale deed of the year 1915 has not been produced before the trial court though admittedly it was in possession of the complainant. It has been submitted that in absence of the original sale "deed it is not possible to come to the conclusion that Ext.4/ 1 is a forged document. In this connection my attention has been drawn to another certified copy dated 31.3.1980 of the sale deed, namely, Ext. 4/2, No doubt in this certified copy the name of both the vendors appeared. This, however, is also a certified copy and on the strength of this certified copy it can not be concluded that the other certified copy (Ext.4/1) is a forged document. The complainant appellant who has not denied that the original sale deed of the year 1915 is in his possession should have produced the same before the court, No reasonable explanation on his behalf has been given for its non-production. It is well known that in a case best possible evidence must be given and if it is in the possession of the party it should not be with-held. With-holding of such important document will obviously lead to adverse inference. So far as the allegation of forgery in Ext.4/1 is concerned in absence of the original document it is not possible to conclude without any reasonable doubt that it is a forged document in which the name of one of the vendors has been omitted. In this view of the matter it is clear that the prosecution has not been able to adduce reliable and proper evidence to show the complicity of respondent no. 5 in the alleged offence. It is well known that the prosecution is duty bound to prove its case beyond all reasonable doubt. The failure of the prosecution to prove the case against the respondents will lead to their acquittal by the trial court. Hence it is clear that the charges framed against respondent no.5 have not been proved. I have carefully gone through the judgment under appeal on this point. The failure of the prosecution to prove the case against the respondents will lead to their acquittal by the trial court. Hence it is clear that the charges framed against respondent no.5 have not been proved. I have carefully gone through the judgment under appeal on this point. On this point I find that the evidence on record has properly been discussed and the learned trial court has come to the correct conclusion so far as this point is concerned. 8. In this connection it may be mentioned that from the Judgment under appeal (at page 8) (judgment has not been properly paragraphed) it appears that RW. 2, the complainant had admitted before the trial court that the original sale deed is with him. The same, however, was not produced for the reasons best known to him. So far as certified copy (Ext.4/1) is concerned he has admitted that it was not prepared in his presence. In other words the alleged forgery was not committed before him. Thus, on this point the evidence of the prosecution is far away from satisfactory. In this connection my attention has been drawn to paragraph 9 of this judgment in which a discussion has taken place as to whether any case under Section 474 of the Indian Penal Code has been made out or not. The learned court below has concluded that actually the charge under Section 471 of the Indian Penal Code will not supply (sic- apply?) to the present case. According to it a case under Sec. 471 of the Indian Penal Code is made out because it is a case of using a forged document. From the judgment it appears that since the learned court below came to the conclusion that the offence under Sec. 471 of the Indian Penal Gode and not under Sec. 474 of the Indian Penal Code has been made out against the respondents, they could not have been prosecuted for this offence in view of the bar imposed by Sec. 195(1 )(b)(ii) of the Code which runs as follows:- "(ii) No Court shall take cognizance of any offence described in Sec. 463, or punishable under Sec. 471, Sec. 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. XXX XXX XXX XXXX except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate." On the strength of this provision of law it has been pointed out that the learned court below holding that the offence committed in this case was under Sec. 471 of the Indian Penal Code and not under Sec. 474 of the Indian Penal Code has held that the bar of Sec. 195 of the Code will apply to the present case and the complaint case filed by the present appellant is not maintainable inasmuch as in a case like this. The complaint in writing should have been filed by the court concerned or by some other court to which that court is subordinate. In this view of the matter it has been pointed out that the complaint filed against the present respondents is not maintainable. This finding of the learned court below has been challenged on behalf of the appellant. 9. It has been submitted that since the alleged forgery has not been committed after filing of the document in the court, the provision of Sec. 471 of the Indian Penal Code will not be attracted. It has also been pointed out that since the forgery was committed else-where and it was only the forged document that was produced in court, therefore, Sec. 471 of the Indian Penal Code will not be applicable to the facts of the present case. In this connection the law appears to be well settled. A reference may be made to the case of Sachida Nand Singh and another vs. The State of Bihar and another (A.I.R. 1998 S.C. 1121). In this decision it has been held that the bar as contained in Sec. 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court. In other words the offence should have teen committed during the time when the document was in custodia legis. Its paragraph 24 runs as follows: "The sequitur of the above discussion is that the bar contained in S.195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the documents was produced in a Court." 10. Its paragraph 24 runs as follows: "The sequitur of the above discussion is that the bar contained in S.195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the documents was produced in a Court." 10. My attention has been drawn to the fact that the decision in this case runs counter to another three Judge in the case of Surjit Singh and others vs. Balbir Singh (1996(3) S.C.C.533). However, the law on this subject now stands well settled in view of the decision in the case of Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. (2005(2) P.L.J.R. 236(S.C). This is a decision by five Judges Bench of the Hon ble Supreme Court. By this decision the three Judge Bench decision of Surjit Singh (supra) has been over-ruled and the decision in the case of Sachida Nand Singh (supra) has been upheld. In paragraph 25 of this decision it has been held as follows: "25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Sec. 195(1 )(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to, a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis." From this it would appear that this question of law now stands settled that if the forgery has been committed before the filing of the document in the court no offence under Section 471 of the Indian Penal Code has committed. 11 Before concluding I would also like to state that in the case of Sushil Kumar and others vs. State of Haryana and others (A.I.R. 1988 S.C. 419) it has been held that the bar of Sec. 195 of the Code could not apply if the original document has not been produced or given in evidence. Thus, in order to attrack the provision of Sec. 195(1)(b)(ii) of the Code the original document has to be produced in the court. In the present case this has not happened. 12. Thus, in order to attrack the provision of Sec. 195(1)(b)(ii) of the Code the original document has to be produced in the court. In the present case this has not happened. 12. From the above it would appear that the finding of the learned court below so far as Sec. 471 of the Indian Penal Code is concerned is not correct and, therefore, there is no question of the application of Section 195(1)(b)(ii) of the Code. However, since in the present case except respondent no.5, the rest of the respondent nos. 2 to 4 are dead and also in view of the fact so far as respondent no.5 is concerned I have already analysed the evidence on record against him according to which no case against him has been made out. I see no reason to interfere with the judgment under appeal at this stage after a lapse of more than 15 years. The law laid down in this decision will, however, hold good. 13. In view of the discussions made above, I am not inclined to interfere with the judgment under appeal and, therefore, this appeal is dismissed.