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2017 DIGILAW 2237 (PNJ)

Javinder Patwari v. State of Haryana

2017-09-25

ARVIND SINGH SANGWAN

body2017
JUDGMENT : Arvind Singh Sangwan, J. The present application has been filed under Section 397 read with Section 482 of the Code of Criminal Procedure (in short 'Cr.P.C.') seeking suspension of the judgment and order of conviction dated 27.03.2017 passed by the Additional Sessions Judge vide which the judgment dated 27.09.2012, acquitting the petitioner along with the co-accused, was reversed and the appellant was sentenced to undergo rigorous imprisonment for a period of 03 years under Sections 419/420-B IPC and 02 years rigorous imprisonment under Sections 464, 471 and 120-B IPC. 2. Brief facts of the case are that the petitioner - Javinder Patwari along with 10 other co-accused faced the trial in FIR No.59 dated 14.03.2006 registered under Sections 419, 420, 464, 467, 468, 471, 120-B, 201 of the Indian Penal Code (in short 'IPC') and 9 and 13 of the Prevention of Corruption Act. The allegations in the FIR are that on a letter dated 08.03.2006 issued by the government for registration of the case regarding sale of land measuring 35 kanals 10 marlas situated in village Raipur vide sale deed dated 01.03.2006. It was alleged that one Ramesh Chander, co-accused had sold this land to Tejpal Chauhan by forging and fabricating various documents including the revenue records which was allegedly prepared by the petitioner i.e. the jamabandi for the year 2000-01 showing the said Ramesh Chander to be owner of the land. 3. The trial Court after a full length trial, acquitted the applicant/petitioner - Javinder Patwari along with 05 other co-accused. However, co-accused Ramesh @ Ram Manohar and Shamsher were convicted under Sections 471, 419, 464, 420 and 120-B IPC. The operative part of the judgment passed by the trial Court relating the applicant/petitioner is reproduced as under :- "40. Now, comes to accused Jivender. The prosecution has got recorded his disclosure statement Ex.PW15/A and Ex.PW15/B but no recovery of any forged jamabandi, forged mutation, forged Aks sizra has been effected on the basis of his disclosure statement. Prosecution has also obtained his writing and thumb impression and got compared his writing and signatures, which is evident from expert report Ex.PX. The prosecution has got recorded his disclosure statement Ex.PW15/A and Ex.PW15/B but no recovery of any forged jamabandi, forged mutation, forged Aks sizra has been effected on the basis of his disclosure statement. Prosecution has also obtained his writing and thumb impression and got compared his writing and signatures, which is evident from expert report Ex.PX. It is observed by the Court that signatures purported to Q11 in xerox copy of mutation bearing No. 2476, English signatures purported to be of Jivinder marked Q8 to Q10, writings marked Q8/1 to Q10/1 and Q8/2 to Q10/2 on three sheets of Nakal Khasra Girdawari; English figures and Hindi writings marked on Q12 and Q13 on a layout of village Raipur. Opinion 4A, 4B and 5 are relevant to be reproduced as under: "4(A). "On inter-se examination of writings on the part of cloth sheet marked Q12 vis-a-vis the part of cloth sheet marked Q13, the following differences have been observed in the execution of figures and writings such as: shape of the two curved parts of figures 3 and direction of its finish resulting in the formation of a compressed eyelet in Q12 whereas no such eyelet have been observed in figure 3' in Q13: movement in the execution of figure 2' in its commencing part as well as in its terminal part is different; shape of the body curved part of figure 4' its location w.r.t. its vertical staff, nature and relative size of vertical staff is also different; Hindi writing in Q13 have been overwritten. Beside this fact, differences are also observed in the execution of various characters such as: shape of the body oval of character or nature of the two strokes of character R shape of the body part of vowel sign of UKAR (u ki matra); relative location of vowel sign of EKAR w.r.t. character; shape of the initial part of character Ga" The aforesaid differences observed between writings on piece of cloth marked Q12 and Q13 indicate that the two sets of writing have been written by two different persons. 4(B) The examination of the stitching of two pieces of cloth marked Q12 & Q13 reveals that the stitching has been made with writings already existing on piece of cloth marked Q12. 4(B) The examination of the stitching of two pieces of cloth marked Q12 & Q13 reveals that the stitching has been made with writings already existing on piece of cloth marked Q12. On the basis of above observations 4(A) & 4(B), it is concluded that the piece of cloth marked Q13 has been subsequently stitched with the piece of cloth marked Q12 already having the layout and writings on it. 5. "It has not been possible to fix the authorship of Q1, Q1/1, Q2 in comparison with S1 to S3, A1 to A4 as well as Q7 to Q11, Q8/1 to Q10/A, Q8/2 to Q10/2 in comparison with S13 to S25 and A7, A8. 41. Writing Q12 and Q13 as per opinion 4A also not tallied. Opinion 4B also not proved that writing has made by Javender. Opinion No.5 is clearly ruled out that question writing on Q8 to 11 and Q8/1 to Q10/1, Q8/2 to Q10/2 in comparison with S13 to S25, A7 to A8 are not found to be tallied. So in the light of Ex.PX prosecution has failed to prove that jamabandi, mutation and Aks sizra have been forged by accused Javender. PW12 Omparkash Patwari, PW17 Ashok, PW19 Ved Ram Kanungo, P5 TP Chauhan, PW22 Suresh Patwari and PW23 PS Bishnoi have turned hostile. Even though, Jivinder was working as Patwari during the relevant period but prosecution failed to bring home the guilt against accused Jivender." 4. Thereafter, two accused i.e. Ramesh @ Ram Manohar as well as Shamsher filed separate appeals challenging their conviction/sentence and similarly, the State of Haryana also filed appeal challenging the acquittal of the petitioner along with 05 other co-accused. The Lower Appellate Court while dismissing the appeal filed by Ramesh @ Ram Manohar and Shamsher has also set-aside the order of acquittal qua the petitioner vide impugned judgment dated 27.03.2017 and vide order of sentence dated 27.03.2017, has sentenced the petitioner to undergo rigorous imprisonment for a period of 03 years under Sections 419 and 420-B IPC and 02 years rigorous imprisonment under Sections 464, 471 and 120-B IPC. 5. In the present revision petition vide order dated 20.04.2017, the sentence awarded by the Lower Appellate Court was suspended by this Court and thereafter, the revision petition was admitted on 08.08.2017. 6. 5. In the present revision petition vide order dated 20.04.2017, the sentence awarded by the Lower Appellate Court was suspended by this Court and thereafter, the revision petition was admitted on 08.08.2017. 6. It is submitted on behalf of the applicant/petitioner that after the acquittal of the petitioner by the trial Court vide judgment dated 27.03.2012, the petitioner was promoted and he is presently working as Naib Tehsildar and therefore, the judgment of conviction and order of sentence passed by the Lower Appellate Court is adversely affecting his service career as he is apprehending disciplinary proceedings from the State of Haryana, which may result into his dismissal from the service. Accordingly, it is prayed that the judgment of conviction as well as the order of sentence qua the petitioner be suspended during the pendency of the present petition. 7. Counsel for the applicant/petitioner has relied upon the judgment of the Hon'ble Supreme Court "Rama Narang v. Ramesh Narang and others", 1995(2) SCC 513 , where the Hon'ble Supreme Court has held that in exercise of the power under Section 389(1) Cr.P.C., the Appellate Court has power to stay the operation of the order of conviction but the Court must examine pros and cons of the case and if it is satisfied that a case is made out is for grant of such order, it may do so. Counsel for the applicant/petitioner has also placed reliance upon the judgment "Navjot Singh Sidhu v. State of Punjab", 2007(1) RCR(Criminal) 836 in which similar view has been taken by the Hon'ble Supreme Court. 8. Counsel for the applicant has further relied upon the judgment "Darshan Singh v. State of Haryana", 2007(3) CCR 172 where this Court while relying upon the judgment Rama Narang's case (supra) has suspended the conviction of the accused. Reliance has also been placed upon the judgment "Pritpal Kaur and others v. State of Punjab", 2017(2) RCR(Criminal) 267, where again this Court while relying upon the aforesaid judgment of the Hon'ble Supreme Court has suspended the conviction of the accused. The operative part of the judgment passed in Pritpal Kaur's case (supra) is reproduced as under:- "6. From the record, I find that applicant/appellant No.2 has been working as Driver for the last 30 years and is due to retire on 31.3.2017. The operative part of the judgment passed in Pritpal Kaur's case (supra) is reproduced as under:- "6. From the record, I find that applicant/appellant No.2 has been working as Driver for the last 30 years and is due to retire on 31.3.2017. The Hon'ble Supreme Court in Rama Narang v. Ramesh Narang and others, 1995 (2) SCC 513 , has considered the aspect of suspension of conviction in the case of a Government employee. Reference can also be made to a judgment delivered by this Court in Roop Singh v. State of Punjab, 2005 (2) RCR(Criminal) 799, where the conviction of accused-appellant under Section 307 IPC was suspended, as on account of conviction, he was going to be removed from the services in the State Cooperative Bank. In Jasminder Kaur v. State of Punjab, 2006 (4) RCR(Criminal) 315, accused (mother-in-law), who was a widow lady of 50 years, was convicted under Section 306 IPC. She was serving as Class IV employee. Her conviction was stayed during the pendency of appeal. Similar view has been taken by this Court in Tarsem Singh v. State, Chandigarh Administration, 2006 (1) RCR(Criminal) 831, wherein conviction of the accused was suspended under Sections 120-B, 420, 468 and 471 IPC during the pendency of the revision. In the present case, the applicant-appellant No.2- Pawan Sandhu has been working as Driver in Local Audit, Department of Haryana and is due to retire on 31.3.2017. He is the only bread winner of his family. But his services will now be dismissed/terminated on account of conviction in the present case. If, at the time of final decision of the appeal, it is held that the alleged offence has not been committed by applicant/appellant No.2-Pawan Sandhu, an irreparable loss would be caused to him because on account of dismissal from service his entire retiral benefits will not be released. Therefore, this is a fit case in which, if stay of conviction is not granted, it will lead to irreparable loss to applicant/appellant No.2. 7. Keeping in view the above discussion and the law laid down by the Hon'ble Supreme Court in Rama Narang's case (supra), the conviction of applicant/appellant No.2-Pawan Sandhu, is stayed/suspended during the pendency of this appeal. 8. Therefore, in the facts and circumstances of this case, I find merit in this application and the same is allowed accordingly qua applicant/appellant No. 2-Pawan Sandhu." 9. 8. Therefore, in the facts and circumstances of this case, I find merit in this application and the same is allowed accordingly qua applicant/appellant No. 2-Pawan Sandhu." 9. It is, thus, submitted that since the applicant/petitioner who is a government servant and was working as Patwari at the time of registration of the FIR and after his acquittal by the trial Court he stands promoted to the post of Naib Tehsildar, in case the judgment of conviction and order of sentence is not stayed, it will adversely affect his service career as he may be dismissed or terminated on account of conviction by the Lower Appellate Court. It is also submitted that if at the time of final decision of the revision petition, it is held that the alleged offence has not been committed by the applicant/petitioner, an irreparably loss would be caused to the applicant because on account of dismissal from the service his entire service benefits will be forfeited and, therefore, it is an exceptional circumstance that this Court should stay the conviction. It is also submitted that the applicant/petitioner has a long unblemished service record on the basis of which he has already been promoted and is working on the promotional post. 10. On the other hand, counsel for the State has opposed the submissions made by counsel for the applicant/petitioner on the ground that the Lower Appellate Court while reversing the finding of the trial Court has rightly recorded its finding that prima facie offences are made out against the applicant/petitioner. 11. After hearing counsel for the parties, I find merit in the application. It is not disputed that the applicant/petitioner was acquitted by the trial Court by holding that it is not proved that the documents which were allegedly used by the co-accused Ramesh i.e. Jamabandi for the year 2000-01 and other revenue records were prepared by the petitioner or were signed by him, therefore, there are moot points involved in the present petition to be decided at the time of final disposal of the revision petition as in case it is found that the alleged offence is not proved against the petitioner, he will unnecessarily face harsh punishment of dismissal from the service and his service career will be adversely effected and it is an exceptional circumstance to suspend conviction of petitioner. 12. 12. Keeping in view the aforesaid discussions made hereinbefore and the law laid down by the Hon'ble Supreme Court in Rama Narang's case (supra), the application is allowed and the conviction of the applicant/petitioner - Javinder Patwari is stayed and shall remain suspended during pendency of the present revision petition.