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Himachal Pradesh High Court · body

2016 DIGILAW 1336 (HP)

State Of Himachal Pradesh v. Ashok Kumar

2016-07-11

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. - This appeal has been filed by the State against judgment dated 18.11.2008 passed by the Court of learned Sessions Judge, Hamirpur, in Criminal Appeal No. 38 of 2008, vide which, learned Appellate Court has accepted the appeal of accused/respondent Ashok Kumar and set aside the judgment of conviction passed against him by learned trial Court in Criminal Case No. 8-II-2005, dated 24.05.2008, whereby learned trial Court had convicted the present respondent for commission of offence punishable under Sections 420, 467 and 468 I.P.C. and co-accused Siri Ram was acquitted for the commission of the said offences. 2. In brief, the case of the prosecution was that Prem Singh filed one complaint Ext. PW 3/A before the Deputy Superintendent of Police, Barsar, against the accused persons to the effect that he was owner in possession of land measuring about 60 Kanal, situated in Tika Khalot, Tappa Dhatwat, Tehsil Barsar, District Hamirpur and in the year 2001, he received one notice from District Manager, H.P. SC & ST Development Corporation, Hamirpur, vide which he was directed to ask accused Ashok Kumar to refund loan amount received by Ashok Kumar from the said Corporation to the tune of Rs. 2,39,000/-. When the complainant enquired the matter, he came to know that accused Ashok Kumar had managed to get the land of the complainant measuring 17 Kanal 12 Marla comprised in Khewat Khatauni No. 20 min, Khasra Numbers 204, 206 and 211, situated in Tika Khalot, Tappa Dhatwat, Tehsil Barsar, District Hamirpur mortgaged with the said Corporation and obtained loan in his favour from the said Corporation. 3. Complainant accordingly, visited the house of accused Ashok Kumar on number of occasions and asked him how he had mortgaged the land of the complainant with the Corporation. He also filed a complainant against accused Ashok Kumar for having committed fraud on 31.01.2002 before the Executive Magistrate, Barsar. The said complaint was forwarded to Station House Officer, Police Station Barsar. Ashok Kumar was asked to settle the matter and he agreed to repay the loan amount in instalment. However, he did not make any payment to the Corporation and the Corporation again sent a notice to the accused and directed him to pay an amount of Rs. 2,94,187/- within ten days. Ashok Kumar was asked to settle the matter and he agreed to repay the loan amount in instalment. However, he did not make any payment to the Corporation and the Corporation again sent a notice to the accused and directed him to pay an amount of Rs. 2,94,187/- within ten days. The complainant again requested Ashok Kumar to make the said payment, but he flatly refused to make any payment to the Corporation. Thus, it was reported that the accused had committed fraud with the complainant by pledging/mortgaging the land of the complainant with the Corporation without the consent and permission of the complainant and he had managed to procure loan in his favour without permission of the complainant. On the basis of said complaint FIR Ext. P.W.10/B was registered against the accused persons. 4. Investigation revealed that the accused conspired with each other and as a result of the said conspiracy, accused Ashok Kumar had managed to raise the loan from the H.P. SC & ST Development Corporation, Hamirpur, by pledging the land of complainant without his consent and permission with intention to cause wrongful loss to the complainant and wrongful gain to himself. Thus, the accused had cheated the complainant. On these basis, challan was filed against the accused for commission of offences punishable under Sections 420, 467 and 468 I.P.C. As a prima facie case was found against the accused, accordingly, they were charged for the commission of offences punishable under Sections 420, 467, 468 read with Section 34 I.P.C., to which they pleaded not guilty and claimed trial. 5. On the basis of material placed on record by the prosecution, learned trial Court came to the conclusion that it stood established on record that accused Ashok Kumar dishonestly and fraudulently deceived complainant by pledging/mortgaging his land with the SC & ST Development Corporation, Hamirpur, by forging the signatures of complainant on the loan documents and used the said loan documents as genuine despite reasonable knowledge and belief that said documents were forged one. Learned trial Court further held that this was done by the accused Ashok Kumar with intention to cause wrongful gain to himself and wrongful loss to the complainant and thus, he had committed forgery and cheated the complainant. Learned trial Court further held that this was done by the accused Ashok Kumar with intention to cause wrongful gain to himself and wrongful loss to the complainant and thus, he had committed forgery and cheated the complainant. The learned trial Court accordingly convicted accused Ashok Kumar for commission of offences under Sections 420, 467 and 468 I.P.C. However, it acquitted the other accused Siri Ram for the commission of said offences. 6. Against the said judgment passed by the learned trial Court, an appeal was preferred in the Court of learned Sessions Judge, Hamirpur, by accused Ashok Kumar against his conviction. No appeal was filed by the State against the judgment of acquittal of accused Siri Ram. 7. Learned Appellate Court vide its judgment dated 18.11.2008 has accepted the appeal filed by accused Ashok Kumar and set aside the judgment of conviction and sentence imposed upon the said accused. The present appeal has been filed by the State against the acquittal passed by the Court of learned Sessions Judge, Hamirpur. 8. I have heard learned counsel for the parties and have gone through the records of the case. 9. In order to prove its case, the prosecution in all examined 14 witnesses. 10. Complainant Prem Singh has entered into the witness box as PW-3. He stated that he never hypothecated any land in favour of the Corporation in order to enable the accused to raise loan for the purchase of vehicle. According to the said witness, documents Ext. PW 2/B, Ext. PW 2/D and Ext. PW 2/G do not bear his signatures. He has denied in his cross-examination that accused owed any amount to him. He has also emphatically denied that he signed the Hypothecation Deed Ext. PW 2/B in the presence of the Executive Magistrate or that he made any statement about the hypothecation of the land in issue before the Manager of the Corporation. However, he has admitted that he has filed a suit for recovery of money in the Court of civil Judge, Barsar against the accused. 11. It is relevant to refer to few of the other witnesses of the prosecution at this stage. PW-2 Piar Chand, District Manager of the Corporation, has stated that at the time of preparation of the Hypothecation Deed in the present case Mr. Raghav was serving as District Manager who presently was working as Regional Assistant in District Solan. 11. It is relevant to refer to few of the other witnesses of the prosecution at this stage. PW-2 Piar Chand, District Manager of the Corporation, has stated that at the time of preparation of the Hypothecation Deed in the present case Mr. Raghav was serving as District Manager who presently was working as Regional Assistant in District Solan. He clearly stated that he was not posted in the concerned office at the time when the loan was raised by Ashok Kumar. 12. PW-4 Dev Raj, Registration Clerk, Tehsil Barsar, has stated that Ext. PW 2/A, Ext. PW 2/B, Ext. PW 2/D and Ext. PW 2/E, which are copies of receipt, Deed of Hypothecation, Power of Attorney are not registered in their office. 13. Shri C.L. Kochar, Addl. Chief Judicial Magistrate, has entered the witness box as PW-7 and stated that on 30.08.2003 an application Ext. P.W.7/A was filed before him by ASI Rajinder Singh of Police Station, Barsar, for the purpose of obtaining specimen handwriting and signatures of Prem Singh, Sri Ram, Pawan Kalia, Pardeep Kumar, Rajesh Kumar and Ashok Kumar. He has also deposed that signatures and handwritings of all the aforesaid persons were obtained on 30.08.2003 and orders were also passed on the said application. 14. PW-8 Ajay Mehta has stated that he remained posted as Judicial Magistrate Ist Class at Barsar w.e.f. 8.10.2003 to 04.03.2004 and on 24.11.2003, an application was filed by the police for obtaining signatures and hand writings of Prem Singh, Rajesh Kumar and Ashok Kumar. According to him, specimen signatures and hand-writings of the said persons was duly obtained. 15. S.H.O. Police Station, Barsar, Baldev Singh, has entered the witness box as PW-10 and deposed about the mode and manner in which the investigation was carried out on the basis of complaint received from the complainant. 16. The case of the prosecution against the accused Ashok Kumar was that he had forged the signatures of PW-3 Prem Singh on the Hypothecation Deed Ext. PW 2/B and the Declaration Deed Ext. PW 2/G and on the said basis, he cheated H.P. SC & ST Development Corporation by raising a loan in his favour by hypothecating the land of the complainant. PW-2 Piar Chand, Manager of H.P. SC & ST Development Corporation, has deposed that he joined the Corporation at Hamirpur on 15.05.2003, whereas the date of hypothecation is 13.01.1998. PW 2/G and on the said basis, he cheated H.P. SC & ST Development Corporation by raising a loan in his favour by hypothecating the land of the complainant. PW-2 Piar Chand, Manager of H.P. SC & ST Development Corporation, has deposed that he joined the Corporation at Hamirpur on 15.05.2003, whereas the date of hypothecation is 13.01.1998. Therefore, on the basis of the testimony of this witness it cannot be said that the prosecution had proved on record beyond reasonable doubt that the accused had signed Hypothecation Deed Ext. PW 2/B by forging the signatures of complainant Prem Singh. It is apparent that the Hypothecation Deed has not been signed in the presence of PW-2 Piar Chand. The officers who were at the helm of the affairs have not been examined by the prosecution to prove the case of fraud and forgery against the accused. 17. Now, coming to the Declaration Deed Ext. PW 2/G, the complainant himself has stated that he cannot say whether he has signed the said document or not. He has further admitted that he has filed a suit for recovery of money against the accused. 18. In our considered view, a perusal of the testimony of the said witness, demonstrates that his statement is neither cogent nor the same inspires any confidence. It is clear from the contents of complaint filed by PW-3 Ext. P.W.3/A dated 05.07.2003 that when he allegedly came to know that the accused had raised loan by hypothecating his land, he went to the house of the accused and asked him to settle the matter. In our considered view, the said conduct of the complainant does not seem to be natural. If any one has played fraud upon a person and hypothecated his land without consent with a bank or Corporation and raised loan on the same, then the immediate re-action of the aggrieved person would be to seek appropriate legal remedy against the said act of fraud. However, in the present case, rather than approaching the police etc. allegedly when he came to know about the fraud having been played by the accused against him, complainant went to the house of the accused and asked him to settle the matter. No prudent person would act in the manner in which the complainant has acted in the present case. 19. allegedly when he came to know about the fraud having been played by the accused against him, complainant went to the house of the accused and asked him to settle the matter. No prudent person would act in the manner in which the complainant has acted in the present case. 19. Thus, in this view of the matter, it cannot be said that the prosecution has been able to prove its case to the effect that the accused forged the signatures of the complainant and without the consent of the complainant hypothecated his land with the Corporation and raised loan over the same. Further, a perusal of the record demonstrates that though specimen hand-writings and signatures of the complainant were taken during the course of the investigation of the case, however, no such report has been placed on record to demonstrate that disputed signatures on Hypothecation Deed Ext. PW 2/B and Declaration Deed Ext. PW 2/G are not that of the complainant and they are of the accused. Thus, in the absence of the prosecution placing on record the report of the Handwriting Expert, an adverse inference has to be drawn against the prosecution. 20. In this view of the matter, in our considered view, it cannot be said beyond reasonable doubt that the prosecution was able to prove its case against the accused that he cheated the complainant by hypothecating the land of the complainant without his consent and by forging his signatures. A perusal of the judgment passed by the learned Appellant Court reveals that all these matters have been gone into in detail by the learned Appellate Court. It has gone into the testimony of all the witnesses in threadbare and thereafter, on the basis of the scrutiny of the material on record, the learned Appellate Court has come to the conclusion that the judgment of conviction and sentence imposed upon the accused by the learned trial Court were not substantiated from the records. 21. In our considered view, the findings so returned by the learned Appellate Court are neither perverse nor the said findings can be said to be suffering from any infirmity. In our considered view also, the prosecution has not been able to prove on the basis of material placed on record, the guilt of the accused beyond reasonable doubt. 21. In our considered view, the findings so returned by the learned Appellate Court are neither perverse nor the said findings can be said to be suffering from any infirmity. In our considered view also, the prosecution has not been able to prove on the basis of material placed on record, the guilt of the accused beyond reasonable doubt. Therefore, while confirming the findings returned by the learned Appellate Court, we dismiss the present appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.