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2011 DIGILAW 1237 (RAJ)

Babu Lal v. State of Rajasthan

2011-06-29

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - Heard learned counsel for the petitioner and the learned Public Prosecutor for the State. 2. The brief facts of the case are that the petitioner filed a complaint under section 427, 465, 467, 468, 471 and 120-B IPC with the averment that there is an ancestral khatedari land bearing khasra No.63 and 63/1 , 108 bigha 6 biswas in G.M.Dhani at village Basani Benda, District Jodhpur. Khatedari of this land was in the name of Gobar Ram, father of the complainant and his brother Chela Ram, Sona Ram and Atma Ram. Non-petitioner No.2 and 3 with Lakha Ram , with an intention to cheat, fraudulently obtained an exparte decree by filing forged documents. The prepared forged partition deed and entered 18 bigha 2 biswas land in the name of Lakha Ram and 18 bigha 2 biswas land in the name of Raghunath and Har Chand by mutation No.93. The said complaint was sent for investigation under section 156(3) Cr.P.C., whereupon a case was registered and investigation commenced and after completion of investigation the police submitted F.R. in the court below. The petitioner filed protest petition against the F.R. The learned Addl.Civil Judge (Jr.Division) & Judicial Magistrate No.3, Jodhpur accepted the F.R. and rejected the protest petition vide its order dated 20.06.2008. The petitioner being aggrieved by the above order, filed a revision before the learned Sessions Judge, Jodhpur which was transferred to the court of learned Addl. Sessions Judge ( Fast Track) No.3, Jodhpur, who rejected the revision petition vide its order dated 17.07.2010. 3. Being aggrieved by the aforesaid orders, the petitioner has preferred this cri. misc. Petition. 4. Counsel for the petitioner contended that this is a case of forgery but the learned trial court as well as the revisional court failed to appreciate the evidence and thus the revisional court committed gross illegality and irregularity, which amounts to abuse of the process of law. 5. Counsel for the petitioner contended that non-petitioner No.2 and 3 obtained a forged decree on the basis of a forged written statement filed in the court of Assistant Collector, Jodhpur and the learned Addl. Sessions Judge as well as the trial court failed to consider the statement of the complainant and his witnesses and the documentary evidence filed by them. Counsel for the petitioner contended that non-petitioner No.2 and 3 obtained a forged decree on the basis of a forged written statement filed in the court of Assistant Collector, Jodhpur and the learned Addl. Sessions Judge as well as the trial court failed to consider the statement of the complainant and his witnesses and the documentary evidence filed by them. The defendant petitioner was never served with any notice and there is enough evidence on record to show that the non-petitioners obtained a decree of declaration by filing forged written statement. Therefore, the order of the learned trial court as well as the revisional court may be set aside, while exercising the inherent powers under section 482 Cr.P.C. 6. I have considered the contentions raised by the learned counsel for the petitioner and also perused the judgment of the learned trial court as well as the revisional court. 7. Learned trial court in its order dated 20.06.2008 held that after the death of Sona and Gobar the only witness available to prove the fact of the forgery is Chhela Ram and he stated in his statement under section 161 Cr.P.C. and in the statement under section 202 Cr.P.C. that whether he singed the written statement or not he does not remember. On the basis of this evidence, the trial court came to the conclusion that other material is not available on record to take cognizance against the accused persons. 8. While deciding the revision petition, the learned revisional court also ordered that both the witnesses stated in their statement that forgery was committed but how the forgery was committed , there was a vague statement and he further came to the conclusion that there is a civil dispute between the parties, therefore, to give it a criminal colour, the First Information Report was lodged. 9. 9. It is settled position of law that if from the statement of the witnesses and other material , commission of any offence is not disclosed , no cognizance can be taken against any person and as both the courts below came to that conclusion that there was no material evidence on record to take cognizance against the accused persons, because simply by saying that some forgery was committed to obtain the decree from the revenue court, it cannot be said that how the forgery was committed and who committed the forgery by signing the written statement. 10. Accordingly, this criminal misc. Petition is dismissed and the order of the revisional court is maintained.Petition dismissed. *******