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2010 DIGILAW 542 (UTT)

VIJENDRA CHAUDHARY v. STATE OF UTTARANCHAL

2010-08-03

NIRMAL YADAV

body2010
JUDGMENT Hon’ble Nirmal Yadav, J. : This petition under section 482 Cr.P.C. has been preferred by applicant challenging the order dated 23.01.2006 vide which he has been chargesheeted under sections 420, 466, 467, 468, 471 of Indian Penal Code (hereinafter referred to as “IPC”). 2. Brief facts of the case are that Ajit Singh had moved an application before Naib Tehsildar, Jaspur along with death certificate of Amrik Singh issued by Gram Pradhan stating that land bequeathed by Amrik Singh be mutated in his name. During the said proceedings, Sukhbir Singh, son of Amrik Singh appeared as witness and deposed that his father Amrik Singh had died on 12.01.2000. He was living separately from his sons namely Sukhbir Singh and Jagtar Singh and Ajit Singh was looking after his father. Being happy with Ajit Singh, Amrik Singh bequeathed the land measuring 0.809 hectare in khasra Nos. 114, 116, 131, 132 in revenue record situated at village Gari Husain in favour of Ajit Singh. He identified the signatures of his father on the said WILL. Balbir Singh, who also appeared as witness, stated that Amrik Singh died on 12.01.2000 and he had bequeathed his land measuring about 2 acres in favour of Ajit Singh. He was one of the attesting witnesses to the WILL. The said mutation proceedings were rejected by Naib Tehsildar mainly on the ground that death certificate of Amrik Singh had not been issued by Block Development Officer but the same had been issued by Gram Pradhan only and therefore, it was not acceptable. 3. Since aggrieved Ajit Singh filed an appeal challenging the said order before Assistant Collector specifically mentioning that the Naib Tehsildar erred in not accepting the death certificate submitted by the appellant. According to the appellant that certificate was issued by Gram Pradhan only. The said appeal was rejected by the Assistant Collector, Jaspur and Assistant Collector came to the conclusion that as per death certificate submitted by the appellant Amrik Singh is still alive and had gone abroad about 7-8 year ago. It has been further mentioned that wife and sons of Amrik Singh have sold the property in favour of Ajit Singh and Ajit Singh in order to save stamp duty has prepared a forged WILL. It is further concluded that even the death certificate of Amrik Singh issued by Block Development Officer has not been submitted by Ajit Singh. It has been further mentioned that wife and sons of Amrik Singh have sold the property in favour of Ajit Singh and Ajit Singh in order to save stamp duty has prepared a forged WILL. It is further concluded that even the death certificate of Amrik Singh issued by Block Development Officer has not been submitted by Ajit Singh. It has further been observed that other co-sharers of Amrik Singh in connivance with appellant Ajit Singh have prepared a forged death certificate. On enquiry it was found that no death certificate was issued with regard to death of Amrik Singh, therefore, it is proved that forged death certificate of Amrik Singh has been produced in the court. Thus, appeal was dismissed. On the basis of findings of Assistant Collector, Jaspur a complaint was submitted by Block Development Officer regarding the forged death certificate of Amrik Singh produced by Vijendra Chaudhary before Assistant Collector, Jaspur. Sri Vijendra Chaudhary, advocate, who appeared on behalf of Ajit Singh in an appeal against the order dated 02.05.2005 passed by Naib Tehsildar, who rejected the application for sanction of mutation on the basis of WILL of Amrik Singh made in favour of Ajit Singh. 4. On the basis of complaint, challan was submitted before Magistrate, thus, applicant Vijendra Chaudhary has been chargesheeted under sections 420, 466, 467, 468, 471 IPC and summon has been issued against the applicant vide order dated 23.01.2006. Since aggrieved, applicant has filed present petition under section 482 Cr.P.C. 5. I have heard Mr. Vinod Sharma, learned counsel for the petitioner/applicant and Mr. Nandan Arya, learned AGA for the State. 6. Learned counsel for the petitioner submitted that petitioner simply appeared as Advocate on behalf of Mr. Ajit Singh and whatever documents were handed over by the appellant Ajit Singh to him were produced before the Court. Therefore, he cannot be held liable for the offence committed by the appellant Ajit Singh, who is beneficiary of the alleged forged death certificate. He further argued that offence under section 420 IPC is not made out against the petitioner as petitioner has neither had dishonest intention nor he has availed any wrongful gain by producing such documents before the Court. 7. Learned counsel for the applicant further submitted that advocate acts on the instructions given by his client and he also places documents on record, which are handed over to him by client. 7. Learned counsel for the applicant further submitted that advocate acts on the instructions given by his client and he also places documents on record, which are handed over to him by client. 8. On the other hand learned AGA opposed the petition and submitted that the court below has rightly taken cognizance of the offence for which petitioner has been charged. Learned AGA referred to the statements of Mohd. Aafaq, Mohan Singh Diwakar, Jagdish Arora clerk of applicant and Ajit Singh recorded under section 161 Cr.P.C. It is submitted that from the perusal of the statements of above witnesses it is clear that applicant was responsible for commission of the crime. He referred to the statement of Ajit Singh, who stated that his advocate Vijendra Chaudhary (applicant) had asked for Rs. 25000/- for getting his name mutated in the revenue record. He has further stated that he never appeared before the court nor he obtained the death certificate of Amrik Singh from any authority. It was procured by advocate Vijendra Chaudhary, himself. Even Jagdish Arora has stated that Vijendra Chaudhary had produced the death certificate. He has no knowledge how did he procure the same. 9. On careful consideration of the rival submissions of the learned counsel for the parties, I am of the view that Vijendra Chaudhary appeared as advocate on behalf of Ajit Singh. Initially, Ajit Singh had produced death certificate before the Naib Tehsildar, which was found to be not issued by the competent authority. Thereafter, he filed appeal before the Assistant Collector and in the appeal the death certificate was produced which is shown to be issued by Block Development Officer, however, on enquiry it was found to be forged. 10. Except the statement of Ajit Singh there is no other evidence on record that alleged death certificate had been forged by the applicant. Petitioner being advocate, he advises his client and if any forged document is handed over to him by his client, the advocate cannot be held responsible. Simply because the alleged death certificate had been produced by advocate before the court, it does not prove that the advocate, who produced it, had committed the offence. Moreover, the advocate would not have been the beneficiary if the said certificate was accepted or rejected. It would ultimately be the person who would have received some wrongful gain by producing it. 11. Moreover, the advocate would not have been the beneficiary if the said certificate was accepted or rejected. It would ultimately be the person who would have received some wrongful gain by producing it. 11. From the record it is not proved that applicant had any wrongful intention to produce the forged document before the court. It appears that Ajit Singh made statement before the investigating Officer in order to save his own skin. The argument that all the witnesses have stated that forged death certificate was produced by applicant and therefore, he should be held liable, cannot be accepted. The advocate is normally appointed as attorney by the client to discharge the duties as his legal adviser. 12. In these circumstances, I am of the view that order of taking cognizance against the petitioner cannot be sustained. Accordingly, present petition is allowed. Impugned order dated 23.01.2006 passed by learned Judicial Magistrate, Kashipur taking cognizance of offence under/sections 420, 466, 467, 468, 471 IPC against the petitioner is hereby quashed.