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2016 DIGILAW 82 (TRI)

Pradip Chakma v. State of Tripura

2016-03-29

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. U.K. Majumder, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the State. 2. This revision petition is directed against the judgment dated 27.11.2012 delivered in Criminal Appeal No.38/2012 by the Addl. Sessions Judge, North Tripura, Dharmanagar. By the said judgment dated 27.11.2012, the judgment of conviction dated 30.07.2012 delivered in G.R.131/2008 by the Sub-Divisional Judicial Magistrate, Kanchanpur, North Tripura, has been affirmed on dismissing the appeal filed by the petitioner. 3. The relevant fact as would be required for appreciating the challenge in this petition is that, one Dhananjoy Chakma on 01.04.2008 had lodged a complaint in the court of the Sub-Divisional Judicial Magistrate, Kanchanpur, North Tripura, disclosing that the petitioner was his nephew and as the parents of the petitioner died in his childhood, the complainant used to look after him. The complainant has further stated that the petitioner also used to look after the complainant and his wife. The petitioner, taking the advantage of love and affection of the complainant, tried to capture the complainant’s landed property by putting pressure on him. On 12.10.2007, with a view to grab all the landed property, the petitioner made an affidavit before the Sub-Divisional Judicial Magistrate, Kanchanpur, North Tripura, stating that the “complainant was his father and the complainant has died”. It was also affirmed in that affidavit that the younger brother of the complainant, namely Indrajoy Chakma also died on 25.12.2002 and the petitioner was the sole legal heir of the complainant as well as of the complainant’s younger brother. It has been also stated in the said ejahar that Indrajoy Chakma actually died on 25.07.1997. The petitioner managed to get a death certificate of Indrajoy Chakma and by swearing a false affidavit before the Sub-Divisional Magistrate, Kanchanpur on 18.09.2001, he made a forged deed by which he got all the property of Indrajoy Chakma. When the complainant put pressure, the petitioner handed over the photocopies of the forged documents to the complainant. The complainant further stated that the delay occurred as there was possibility of amicable settlement of the dispute. 4. The Sub-Divisional Judicial Magistrate, Kanchanpur, North Tripura, without taking cognizance, sent the said complaint to the O/C, Kanchapur Police Station for investigation under Sections 156(3) of the Cr.P.C. and accordingly, Kanchanpur P.S. Case No.21/2008 under Sections 420/468/471 of the IPC was registered. 4. The Sub-Divisional Judicial Magistrate, Kanchanpur, North Tripura, without taking cognizance, sent the said complaint to the O/C, Kanchapur Police Station for investigation under Sections 156(3) of the Cr.P.C. and accordingly, Kanchanpur P.S. Case No.21/2008 under Sections 420/468/471 of the IPC was registered. On investigation, the chargesheet was filed against the petitioner under Sections 420/468 of the IPC. When the charge was framed under Sections 420/468/471 of the IPC, the petitioner pleaded innocence and claimed to face the trial. 5. To substantiate the charge, the prosecution adduced as many as 12 witnesses and admitted 3 (three) documentary evidence. Thereafter, the petitioner was examined under Section 313 of the Cr.P.C., where he had repeated his plea of innocence. 6. On appreciation of the evidence placed on record, the trial court passed the judgment of conviction dated 30.07.2012, which has been affirmed by the impugned judgment dated 27.11.2012. 7. Mr. U.K. Majumder, learned counsel appearing for the petitioner has submitted that photocopies of the questioned documents like the forged deed as executed on alleged personation of Indrajoy Chakma on 18.09.2001 and the other documents were placed on record as Exbt.3 series. On the basis of the said false affidavit some documents were created by the Revenue Officer. It has not been denied that said Indrajoy Chakma really died on 25.07.1997. 8. It appears from the records that some highly relevant documents were seized by the police officer. From the form of Bail and Security dated 24.04.2008 (Exbt.2), it would appear further that the police had seized the counterfoils of the death certificates dated 02.06.2007 and 14.02.2007. Both the death certificates were issued in respect of Indrajoy Chakma on the prayer of Dhananjoy Chakma and on the prayer of the petitioner. One register book as testimonial alongwith those documents were released by way of obtaining a bond, but it appears further that those documents were never produced in the trial. Both the death certificates were issued in respect of Indrajoy Chakma on the prayer of Dhananjoy Chakma and on the prayer of the petitioner. One register book as testimonial alongwith those documents were released by way of obtaining a bond, but it appears further that those documents were never produced in the trial. In the trial, the prosecution produced the photocopies of those documents like the gift deed (part of Exbt.3, allegedly executed by Indrajay Chakma in a time falling ‘after his death’ in favour of the petitioner), one Khatian bearing No.176, where the name of Dhananjoy Chakma, the complainant, has been struck off on the basis of the death certificate and the deed of transfer, submitted by the petitioner alongwith other previous documents in respect of those khatians, the original death certificate of Indrajoy Chakma issued on 19.02.2007 showing his date of death on 25.07.1997, one photocopy of the affidavit of the petitioner stating that Indrajoy Chakma died on 25.12.2002, one page of the Register of Residents in Book No.2, Sl.No.134 issued on 01.11.2007 to show that in the said register, in the column denote death, the name of Dhananjoy Chakma was not recorded because he was still living, the minutes of the meetings held on 11.03.2007 and 16.12.2007 respectively, where the complainant Dhananjoy Chakma was present. All parts of Exbt.3 have been admitted in the evidence without following the procedure as laid down in Section 65 of the Evidence Act for purpose of admitting any secondary evidence within the meaning of Section 63 of the Evidence Act. 9. Mr. U.K. Majumder, learned counsel appearing for the petitioner has submitted that the impugned judgment as well as the judgment of the trial court are based on all those documents and on the oral testimony of PW.5 and others. He has also submitted that the contents of the document cannot be proved by the oral evidence in view of Section 22 of the Evidence Act, which provides that : “Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.” 10. Since the provision of Section 65 of the Evidence Act has not been observed by the person who is supposed to prove it, the content of those documents cannot be relied and admissibility of those photocopies have been questioned by the petitioner at the trial. But, both the trial court and the appellate court have not directed their consideration whether those photocopies can be admitted in the evidence without following the procedure as laid down in Section 65 of the Evidence Act. Even the original documents which were released on bail were not produced at the time of the trial. 11. The apex court in Sital Das Vs. Sant Ram & Ors., reported in AIR 1954 SC 606 and Roman Catholic Mission etc. Vs. The State of Madras & Anr., reported in AIR 1966 SC 1457 , has held that the foundation must first be laid for reception of the secondary evidence and the foundation must be based on the procedure as laid down under Section 65 of the Evidence Act. In this case, the prosecution, according to Mr. U.K. Majumder, learned counsel, has totally failed to lay down the said foundation. 12. Mr. R.C. Debnath, learned Addl. Public Prosecutor has submitted that he is not in a position to defend the admissibility of those documents and obviously the prosecution has not laid any foundation for admitting the secondary evidence in observance of the provisions as laid down in Section 65 of the Evidence Act. As such, the basic ingredient of Section 420 of the IPC was not proved by the substantive evidence. 13. The basic ingredients of Section 420 of the IPC are that there must be deception of any person and that the accused fraudulently or dishonestly induced that person to deliver any property intentionally inducing that person to do or omit to do anything which he would not have otherwise done. There cannot be any amount of difference to prove the dishonest intention of the accused. But, no doubt it can be proved by the circumstances, from which a reasonable inference can be drawn. The apex court has laid down the law in this respect in Devender Kumar Singla Vs. Baldev Krishan Singla, reported in (2005) 9 SCC 15 . There cannot be any amount of difference to prove the dishonest intention of the accused. But, no doubt it can be proved by the circumstances, from which a reasonable inference can be drawn. The apex court has laid down the law in this respect in Devender Kumar Singla Vs. Baldev Krishan Singla, reported in (2005) 9 SCC 15 . Another aspect that is closely related to this case is that there had been delivery of property and forging of the property deed which was not actually executed by the living owner because he died long back, his impersonation was caused to get such deed of the true owner whose signature has apparently been forged, namely gift deed, being executed. Unless execution of that deed is proved, the basic ingredients are not proved. There were other means available to the prosecution to prove from the circumstances and hard evidence such as, bringing the certified copies of the documents, bringing the register from the office of the Sub-Register and also the other Government documents where some traces were available. 14. Though initially the Investigating Officer brought those documents by way of seizure, but the court released them on execution of a bond, whereas at the time of trial no notice was issued to the surety directing production of those materials by the Government officer who received those documents. The trial court has without observing the procedure as laid down under Section 65 of the Evidence Act, has admitted those documents. Even though the objection has been strongly raised by the petitioner, but that objection was not discharged by a reasoned order. Even the appellate court did not make the necessary exercise as to the position of the law. This court appreciatingly notes the role of Mr. Debnath, learned Addl. Public Prosecutor, who has fairly submitted that the procedure that has been followed by the trial court in admitting those photocopies cannot be defended as the act is wholly indefensible. 15. This court has scrutinised the records including the oral testimonies and finds that unless the documents are admitted, the oral statements as to the transaction and creation of the sale deed by way of fraudulent act exercising deception from the beginning, cannot be held to have proved. As a result, this court is of the view that the admission of those documents is not sustainable. As a result, this court is of the view that the admission of those documents is not sustainable. Accordingly, those documents should not have been considered for admission by the trial court as well as by the appellate court. 16. Having held so, the petitioner is acquitted from the charge under Sections 420/468 of the IPC on benefit of doubt. Accordingly, this petition stands allowed for the above reasons. Before parting with the case, it is observed that this judgment and order cannot be utilised by any person to support the execution of the deeds or the affidavits or the applications which were fraudulently made and before using those fraudulent deeds, the impersonation and forging of those documents cannot be scored out. The aggrieved persons shall have the right to follow the process of law in spite of this judgment and order. Even the persons who are aggrieved by the fraudulent act as allegedly have been indulged by the petitioner can take recourse to law for proving that the documents, deeds, applications were forged by way of impersonation and those are not valid documents for transfer. Even they would be at liberty to make the application before the competent court/officer for cancellation of those deeds, affidavits, record of rights etc. Send down the LCRs forthwith.