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2014 DIGILAW 371 (CHH)

State of M. P. v. Tulsiram

2014-10-28

CHANDRA BHUSHAN BAJPAI

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JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of acquittal dated 7-11-1997 passed by the Judicial Magistrate First Class, Dhamtari (MP now CG) in Criminal Case No. 254 of 1997, whereby and whereunder learned Judicial Magistrate First Class acquitted the accused/respondents (including respondent No. 5 Sugan Chand S/o. Champalal, who died on 13-12-2000 during pendency of this appeal) of the charges of Sections 420, 467, 468,471 and 120-B of the I.P.C. for alleged offence of use of a forged Will dated 12-04-1991 (Ex. P/11) as a genuine document fraudulently and dishonestly in relation to Jhummarlal Jain, resident of Village Khisora, Police Station, Magarlod. The judgment and order of acquittal dated 7-11-1997 is impugned on the ground that even there being sufficient evidence available for holding the respondents/accused guilty of the offence under Sections 420, 467, 468 and 471 of the I.P.C., the Court below acquitted them, and thereby committed illegality. 2. As per the case of prosecution, on 20-10-1991, Jhamku Bai (PW/6), wife of late Jhummarlal Jain gave a written complaint (Ex. P/2) to the then SDO(P), Dhamtari in which she stated that the Tahsildar, Dhamtari had instructed to provide her immediately a true copy of mutation after the death of her husband Jhummarlal. The said instruction was issued to Patwari, Halka No. 78. Initially, concerned Patwari did not comply the said instruction, but subsequently, on making a complaint to the Tahsildar, Dhamtari, a copy of the Mutation was given to her on 19-10-1991. She, after-examination of the Mutation document, came to know that on the basis of a Will presented on 13-8-1991, a mention of publication of a notice on 13-8-1991 itself was made and thereafter on 1-9-1991, the land belonging to her husband Jhummarlal was mutated in the names of respondent No. 5 Sugan Chand and others. As per the written complaint (Ex. P/2), no publication of any notice was made nor any announcement was made by way of beating of drum regarding the so called notice. She further stated that her husband was-not keeping good health, he was incapable to move outside the house and he died on 8-5-1991. Had he executed any Will on 10-4-1991, she would have come to know regarding execution thereof and, therefore, the Will is under cloud. She further stated that her husband was-not keeping good health, he was incapable to move outside the house and he died on 8-5-1991. Had he executed any Will on 10-4-1991, she would have come to know regarding execution thereof and, therefore, the Will is under cloud. She also stated that three acres of land bearing Khasra No. 1/8 was already sold by her husband through a registered sale-deed on 12-6-1990 much before execution of the forged Will on 10-4-1991. She prayed for conducting an inquiry over the said Will and other concerned record, for necessary action against all concerned, for return of her property and for police protection for her safety on her own costs. Under the written instruction of SDO(P), Dhamtari dated 20-10-1991, Police Station, Magarlod lodged First Information Report (Ex. P/1) on 21-10-1991 by registering Crime No. 124 of 1991 under Sections 420, 467, 468 and 471 of the I.P.C. and started investigation. During the course of investigation, Police seized Mutation register vide Ex. P/3 and gave it to Patwari on Supurdnama. Police also seized three original registered sale-deeds (Exs. P/8, 9 and 10). From complainant Jhamku Bai, Police seized a copy (Ex. P/7) containing handwriting of her husband Jhummarlal. The questioned document said to be a forged Will (Ex. P/11) was seized vide seizure memo (Ex. P/6). Seized Will (Ex. P/11) and other documents in respect of handwriting and signature of deceased Jhummarlal were sent to State Examiner of Questioned Documents, Government of MP for examination. The Additional State Examiner of Questioned Documents, Government of MP, after examination thereof, gave his opinion vide Ex. P/12 that the person who wrote the red enclosed signatures stamped and marked as A-1 to A-11, B1 to 87 and C-1 to C-8 did not write the red enclosed signatures similarly stamped and marked as Q1 and Q2. 3. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of the investigation, charge-sheet was filed before the Judicial Magistrate First Class, Dhamtari, the then District, Raipur (MP now CG) on 10-12-1992. Learned trial-Judge framed charges against accused/respondents Tulsiram, Umesh, Shiv Kumar, Shatrughan under Section 120-B of the I.P.C. and against other accused/respondents under Sections 420, 467, 468 and 471 of the I.P.C. All the respondents denied the charges and prayed for trial. 4. Learned trial-Judge framed charges against accused/respondents Tulsiram, Umesh, Shiv Kumar, Shatrughan under Section 120-B of the I.P.C. and against other accused/respondents under Sections 420, 467, 468 and 471 of the I.P.C. All the respondents denied the charges and prayed for trial. 4. In order to prove the guilt of the respondents, the prosecution examined as many as 11 witnesses. Statements of the respondents/accused were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. Respondents examined two defence witnesses, namely, Vijay Kumar Sahu as DW/1 and Kamal Sahu as DW/2. 5. As per the defence witnesses, respondent No. 5 Sugan Chand, while searching the almirah of deceased Jhummarlal, got the Will and took it out with him. 6. After affording opportunity of hearing, learned trial Court acquitted all the accused/respondents of the charges under Sections 420, 467, 468,471 and 120-B of the I.P.C. 7. I have heard learned counsel for the parties, perused the record of the trial Court as well as the impugned judgment. 8. Learned counsel appearing for the appellant/State submits that the trial Court grossly erred in holding that the prosecution failed to prove the charges under Sections 420, 467, 468, 471 and 120-B of the I.P.C. Learned trial Court also grossly erred in holding that the alleged forged Will does not bear the signature of deceased Jhummarlal. As per evidence (Ex. P/12) of the Additional State Examiner of Questioned Documents, the signatures at Q-1 and Q-2 in Ex. P/11 were not put by the person who signed the other three-registered sale-deeds. Learned trial Court also erred in not considering the Will to be a forged document as it was not produced earlier from proper custody and on the basis of execution of such forged Will, the offence was constituted under Section 420 of the I.P.C. Learned trial Court failed to evaluate the evidence on record, minor discrepancies do not vitiate the trial and such minor discrepancies should not be given undue weightage. The trial Court also wrongly held that the Revenue Court (Competent Court) did not take any action under the provisions of Section 195 of the Cr.P.C. on production of the alleged forged Will (Ex. P/11) and, therefore, the prosecution case is not maintainable. The trial Court also wrongly held that the Revenue Court (Competent Court) did not take any action under the provisions of Section 195 of the Cr.P.C. on production of the alleged forged Will (Ex. P/11) and, therefore, the prosecution case is not maintainable. She further submits that the findings of the learned trial Court recorded upto paragraph 27 of the judgment are manifestly erroneous on facts and law. In the alleged Will (Ex. P/11), there is also a mention of land bearing Khasra No. 1/8 of three acres out of which, one acre was sold to Chintaram by a registered sale-deed dated 12-6-1990 (Ex. P/8), one acre was sold to Nanduram by a registered sale-deed dated 12-6-1990 (Ex. P/9) and rest one acre was sold to Johatram by a registered sale-deed dated 12-6-1990 (Ex. P/10), which goes to show that the Will is a forged document which was not executed by deceased Jhummarlal because had he executed the said Will, he would not have included the said land bearing Khasra No. 1/8 area 3 acres in the Will as he had already sold the said land to the aforementioned three persons by three registered sale-deeds dated 12-6-1990 (Exs. P/8, 9 and 10). Hence, the prosecution succeeded in proving its case before the trial Court and, therefore, the impugned judgment and order of acquittal passed in favour of the accused/respondents is not proper. The impugned judgment be set aside and the accused/respondents be punished for the offence committed by them. 9. Per contra, learned counsel appearing for the accused/respondents submitted that the signatures marked as Q1 and Q2 in the Will (Ex. P/11) were not proved by the prosecution that they were put by any of the accused/respondents. The prosecution had not taken any specimen of writing and signature of any of the accused/respondents for the purpose of examination thereof and comparing with the signatures put at Q-1 and Q-2, therefore, there is nothing on record to connect any of the accused/respondents with the alleged signatures. As per their defence, one of the accused/respondents got the Will while searching the almirah of deceased Jhummarlal under the knowledge of Jhamku Bai and other family members in the house of Jhummarlal itself. The accused/respondents did not make any forgery for preparation of the Will (Ex. P/11). It was further argued that in Ex. As per their defence, one of the accused/respondents got the Will while searching the almirah of deceased Jhummarlal under the knowledge of Jhamku Bai and other family members in the house of Jhummarlal itself. The accused/respondents did not make any forgery for preparation of the Will (Ex. P/11). It was further argued that in Ex. P/11, names of accused/respondents Tulsiram, Shivkumar, Umesh and Shatrughan were mentioned as witnesses of the execution of the Will and their signatures were put therein, but the prosecution failed to take any specimen of their hand writing or signatures for examination and comparison to find out whether they really put their signatures on the Will (Ex. P/11) or not. With this, it cannot be held that the names of accused/respondents Tulsiram, Shivkumar, Umesh and Shatrughan mentioned in Ex. P/11 or the signatures put by them therein was a forgery. He further argued that as per mandatory provisions of clause (b)(ii) of sub-section (1) of Section 195 of the Cr.P.C., the Court cannot take cognizance against the offence under Section 471 of the I.P.C. except on a complaint in writing by the concerned Revenue Court or by any authorized officer of the concerned Revenue Court where the alleged forged Will is produced fraudulently or dishonestly as a genuine document. Hence, the trial under Section 471 of the I.P.C. is vitiated and conviction cannot rest in absence of written complaint by the Revenue Officer before whom the alleged forged Will was produced for the purpose of mutation. He further submitted that the prosecution failed to produce any document as a certified copy to show that accused/respondents filed an application before the Revenue Court for the purpose of Mutation of land belonging to Jhummarlal, brother of the fathers of the accused/respondents. Neither any certified copy nor any other document in relation to alleged Mutation done on the basis of the alleged forged Will was ever produced and admitted before the trial Court. In absence of any evidence regarding the Mutation proceeding done in favour of the accused/respondents, it cannot be held that the accused/respondents fraudulently or dishonestly used a forged Will in their favour. With this complete chain of circumstances, the essential ingredients to convict the accused/respondents are missing. On the basis of these facts and evidence, the trial Court rightly acquitted the accused/respondents and there is no force in the appeal, therefore, the same be dismissed. 10. With this complete chain of circumstances, the essential ingredients to convict the accused/respondents are missing. On the basis of these facts and evidence, the trial Court rightly acquitted the accused/respondents and there is no force in the appeal, therefore, the same be dismissed. 10. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf of the prosecution before the trial Court. 11. The accused/respondents Sugan Chand (since deceased), Prakashchand, Chandanmal, Premchand, Dilip, Tikam and Gyanved are members of the family of deceased Jhummarlal. They are real grand-sons of Jeth (elder brother-in-law) of Jhamku Bai. If we see the legal provisions of clause (b)(ii) of sub-section (1) of Section 195 of Cr.P.C., it goes to show that if an offence under Section 471 of the I.P.C. is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in the Revenue Court (for the purpose of this case) where someone fraudulently or dishonestly used a forged document (Will) as a genuine document, which he knows or believes to be true, no Court shall take cognizance unless the concerned Revenue Court or any authorized person of the said Revenue Court files a complaint in writing before the Court concerned. 12. In the present case, there is no such complaint in writing obtained from the revenue Court during the course of investigation and even the same was not produced during trial. With this, trial under Section 471 of the I.P.C. vitiates and for this, the appellant/State failed to show any provision, whereby this requirement may not attract. Therefore, I agree with the findings of the trial Court that by non-compliance of the provision under Section 195 of the Cr.P.C., trial under Section 471 of the I.P.C. against the accused/respondents is vitiated and conviction cannot be based in absence of any such written complaint as required. 13. If we eliminate the charge-under Section 471 of the I.P.C. against the accused/respondents for offence under Sections 420, 467 and 468 of the I.P.C. in respect of respondents Prakashchand, Chandanmal, Premchand, Dilip, Tikam and Gyanved, the prosecution has to prove that these accused/respondents committed the offence of cheating with the help of a forged document (Will) or any of the material connected thereto. The Additional State Examiner of Questioned Documents was confined to answer before the trial Court only on the part that Jhummarlal, who put signatures on the three registered sale-deeds (Exs. P/8, 9 and 10) was not the person who put signature on the alleged forged Will (Ex. P/11). If we accept this piece of evidence, even then this may not lead the prosecution towards holding the accused/respondents guilty. Reason is that if the alleged document was ever produced or used as a genuine Will in any Mutation proceeding in a Revenue Court, no certified copy or original proceedings of that Revenue case was ever produced or used as evidence before the trial Court. With this, there is no admissible evidence that these accused/respondents ever used that Will (Ex. P/11) in the Mutation proceeding. Even, Mutation order was not tendered and used as an evidence. All the accused/respondents cannot be connected with the forged signatures put in Ex. P/11 because the prosecution has not taken specimen signature of any of them and got it examined and compared with handwriting or signatures put in Ex. P/11. Therefore, it is not proved that in whose writing the said document Ex. P/11 was prepared or who put signatures on the said document. Use of such document has also not been proved before the trial Court by not tendering or producing the entire proceedings of the case of the Revenue Court either by filing certified copy or by seizure of that original Revenue case for which Investigating Officer was authorized. He was also authorized to prepare and keep the photocopies of the case during the course of investigation and should have returned the proceedings of the original revenue case on Supurdnama with a direction to bring the same at the time of recording of evidence. It was the duty of the prosecution to make arrangements regarding presentation of those certified-copies and other documents to prove them. Why the prosecution did not go through the essential exercise is unexplained. The prosecution built-up the entire case on the basis of written complaint (Ex. P/2) made by Jhamku Bai (PW/6), but did not take care to collect admissible evidence from the revenue Court which were the basis of the present alleged offence. 14. Why the prosecution did not go through the essential exercise is unexplained. The prosecution built-up the entire case on the basis of written complaint (Ex. P/2) made by Jhamku Bai (PW/6), but did not take care to collect admissible evidence from the revenue Court which were the basis of the present alleged offence. 14. The trial Court, after elaborate discussion in paras 22, 25, 26 and other relevant paras, held that the prosecution has failed to prove the criminal conspiracy against the accused/respondents Tulsiram, Shivkumar, Umesh and Shatrughan under Section 120-B of the I.P.C. The trial Court also held that the prosecution failed to prove its case against remaining accused/respondents under Sections 420, 467, 468 and 471 of the I.P.C. and, therefore, the trial Court acquitted all the accused/respondents of the charges framed against them. 15. On minute scrutiny of the evidence, this Court is of the considered opinion that the appellant/State has failed to prove its case against the accused/respondents and the trial Court has not committed any illegality or irregularity while acquitting all the accused/respondents. The judgment of the trial Court needs no interference. Accordingly, the appeal preferred by the appellant/State, being devoid of merit, is liable to be and is hereby dismissed. It is stated that the accused/respondents are on bail. Their bail bonds shall continue for a further period of six months in view of Section 437-A of the Cr.P.C.