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2012 DIGILAW 552 (RAJ)

Hira Singh v. State of Rajasthan

2012-03-01

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. By this petition, the petitioner has challenged the order dated 26.2.2007 passed by the Judicial Magistrate, First Class, Sadulshahar taking cognizance against the petitioner for the offences under Sections 420, 467, 468 and 471 I.P.C. as affirmed in revision by the learned Additional Sessions Judge No.2, Sri Ganganagar by his order dated 19.12.2008. 3. Succinctly stated the facts of the case are that the respondent no.2/complainant filed a FIR at the Police Station, Sadulshahar with the allegations that a land measuring 16 bighas had been allotted to his mother Mahendro and his maternal grand mother on 13.10.1958. It was further alleged that the complainant's mother Mahendro, his grand maternal mother Kano and Toti were having equal shares in the land. It was also mentioned in the complaint that the complainant's mother had a share of 5.07 bighas of land which the complainant and his brother & sisters were entitled to receive in succession. The complainant also stated that after the death of his mother and grand maternal mother, accused Hira Singh prepared a forged affidavit of his mother and grand maternal mother and tried to wrongfully usurp the land of the complainant. The police investigated the matter and during the course of investigation, the police came to the conclusion that the possession of land in question was of Hira Singh. It was also found that on 26.4.1974, Kano and her two daughters Teja and Mahendro gave an affidavit in support of Hira Singh thereby bequeathing the land in favour of the petitioner and as such, the complaint lodged by the complainant was false. On the submission of final report, the complainant filed protest petition and had the statements of his own and his witnesses recorded under Sections 200 and 202 Cr.P.C. During the course of enquiry, the complainant submitted a report of the private handwriting expert on the basis of which it was attempted to demonstrate that the signatures of Mahendro on the original Rahannama (bequeathment deed), ration card and a certificate said to be bearing the signatures of Mahendro, did not match with each other. The learned Magistrate thereafter relying on the said report of the alleged handwriting expert, proceeded to take cognizance against the petitioner as mentioned above. The learned Magistrate thereafter relying on the said report of the alleged handwriting expert, proceeded to take cognizance against the petitioner as mentioned above. The petitioner challenged the order taking cognizance by way of a revision and the revisional court has affirmed the order of the learned Magistrate. Accordingly, the petitioner has approached this Court by way of instant petition seeking quashing of orders impugned as well as cognizance taken against the petitioner. 4. Assailing the orders impugned passed by the court below, counsel for the petitioner submits that the allegations made by the complainant regarding the petitioner having committed forgery for the purpose of depriving the complainant from the property, is patently false. He submits that the petitioner is the son of late Kano and the land in question was allotted to Kano, Mahendro and Teejo in the year 1954. Thereafter, the land allotment certificate was issued in the year 1976 but during this period, the petitioner's mother i.e. Kano, Mahendro as well as Teejo bequeathed their land to the petitioner. The complainant claims to be adopted son of late Mahendro and on the basis of the said contention, he claims to be the person entitled to the land of Mahendro. Counsel for the petitioner relying on a decision of Divisional Commissioner, Bikaner (in relation to the disputed land) on an application under Displaced Persons (Compensation and Rehabiliation) Act, 1933 passed on 9.3.2004 submits that in the said judgment, the learned Divisional Commissioner has clearly held that the land allotted to Kano, Mahendro and Teejo in the year 1954 devolved upon the petitioner as Mahendro did not bear any children from her marriage to Pritam Singh. It has also been held that Tehal Singh (complainant) and his siblings were as a matter of fact children of Pritam Singh from his earlier marriage and did not have any succession rights to the property of Mahendro. Thus, it was held that only the petitioner was entitled to the land in question. It is stated that a writ petition challenging the said order is pending before this Court. That apart, it has also been submitted that the allegation of the complainant regarding the document (bequeathment deed) bearing false thumb impression was patently wrong and misconceived for the reason that no comparison of the thumb impression of the deceased Mahendro appended on the allegedly forged document, has been conducted by a Government expert. That apart, it has also been submitted that the allegation of the complainant regarding the document (bequeathment deed) bearing false thumb impression was patently wrong and misconceived for the reason that no comparison of the thumb impression of the deceased Mahendro appended on the allegedly forged document, has been conducted by a Government expert. Thus, it is argued that merely on the basis of oral submissions of the complainant, the prosecution of the petitioner for the offences of cheating and forgery is absolutely unwarranted. 5. Learned counsel for the complainant/respondent no.2 as well as learned P.P. have opposed the prayer made in the petition. Counsel for the complainant submitted that the complainant has been deprived of the land in question by creation of forged documents and thus, the orders of the court below do not call for any interference. It is also submitted that the complainant and his siblings were very much entitled to receive the properties of his late mother. 6. I have considered the arguments advanced at bar and have considered the orders impugned and have perused the record. 7. Undisputedly, the issue regarding entitlement of the land was decided by the competent authority i.e. Divisional Commissioner, Bikaner in favour of the petitioner on 9.3.2004. In the said order, the learned Divisional Commissioner has given a finding that the complainant and his siblings are the children of Pritam Singh from his earlier marriage and that they had no succession rights to the property of Mahendro and as such only, the petitioner Heera Singh was entitled to the land in question on the death of the original allottee. Though the said order is subject to challenge before this Court in a writ petition but till date, no order adverse to the petitioner has been passed in the said writ petition. That apart, the allegation of the complainant that the bequeathment deed bore false thumb impressions of Mahendro, has not been established by any evidence. Though the complainant has placed reliance on the certificate issued by a so-called handwriting expert namely, Mr.Anil Kumar Gupta, but in the opinion of this Court, such a certificate is not a piece of evidence on which reliance can be placed upon even for the purposes of taking cognizance. The provision by the strength where of, a certificate of an expert is admissible in evidence, is Section 293 Cr.P.C. which reads as below:- "293. The provision by the strength where of, a certificate of an expert is admissible in evidence, is Section 293 Cr.P.C. which reads as below:- "293. Reports of certain Government scientific experts. (1) Any document purporting to be a report under the band of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report. (3) Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf (4) This section applies to the following Government scientific experts, namely. (a) Any Chemical Examiner or Assistant Chemical Examiner to Government, (b) The Chief Inspector of Explosives, (c) The Director of the Finger Print Bureau, (d) The Director, Haffkeine Institute, Bombay, (e) The Director [Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State forensic Science Laboratory], (f) The Serologist to the Government." 8. Undisputedly, the so-called expert Mr.Anil Kumar Gupta is not a Government scientific expert as defined in Section 293 Cr.P.C. Furthermore, there is no material available on the record as regards the sanctity of the documents on the basis whereof, the expert has given certificate. No permission was sought from the Court before comparing the thumb impressions. Thus, both the courts below have committed a grave illegality in relying upon the certificate of the private handwriting expert for the purpose of holding that the document in question was a forged document. If at all, the complainant was desirous of relying upon the expert's report for the purpose of pleading before the Court that the bequeathment deed was a forged document, then the so-called expert should have been examined as a witness under Section 202 Cr.P.C. and thereafter only, his evidence regarding the comparison of document could have been taken into consideration. 9. 9. Resultantly, this Court has no hesitation in arriving at a conclusion that the prosecution of the petitioner in this case for committing the offences of cheating and forgery is absolutely unwarranted.Consequently, the instant misc. petition is allowed, the orders dated 26.2.2007 and 19.12.2008 passed by the Judicial Magistrate, First Class, Sadulshahar and the learned Additional Sessions Judge No.2, Sri Ganganagar respectively are quashed.Stay petition also stands disposed of.Petition allowed. *******