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2018 DIGILAW 571 (GUJ)

Frany Rustom Contractor v. State of Gujarat

2018-02-22

S.G.SHAH

body2018
JUDGMENT : 1. Heard learned advocate Mr. P. Y. Divyeshwar for the applicant, whereas learned Senior Counsel Mr. Yogesh Lakhani with learned advocate Mr. Pravin Gondaliya for respondent Nos. 2 to 5 and learned APP for respondent State being investigating and prosecuting agency. Perused the record and paper book. 2. Petitioner herein is original complainant, who has lodged an FIR before DCB Police Station, Vadodara under Section 406, 420, 467, 468, 471, 474 and 120B of the Indian Penal Code, which is registered as I – C.R. No.7 of 2011 on 15.02.2011 against present respondent Nos. 2 to 5 as well as one another person namely Akshar R. Ashar (for short ‘A. R. Ashar’. However, though FIR is against 5 persons, ultimately after investigation when police has filed charge sheet against respondent Nos. 2 to 5 disclosing AR Ashar as absconding accused and, therefore, trial against AR Ashar could not be held till date. His name is shown in second column of charge sheet as an absconding accused. 3. The sum and substance of the complaint by the petitioner is to the effect that she is owner of property under reference, which is situated in posh area of Vadodara. So far as present litigation is concerned, details of such property is not much material except to record it once that it is plot no. 2, City survey No.15 of Revenue survey No.165 and 168, since, dispute is with regard to transferring ownership of such property by forge documents. It is alleged by the complainant that accused No.1 AR Ashar had created several forge documents and executed one sale deed in favour of his mother namely Neelaben R. Ashar and that no entries were found in record of the Executive Magistrate, Vadodara before whom such documents were executed and that stamp wander is now no more, so also purchaser - mother of accused No.1 could not be found at her address at present, and thereby, it is difficult to prove that such documents is forged by accused No.1 AR Ashar by forge signature of the complainant made by him. It is further alleged that in such sale deed names of two witnesses are disclosed - Jayaben and Rahul, who is expired, whereas Jayaben has made a statement before the police during investigation that complaint has not signed in her presence and she is not knowing the complainant. It is further alleged that in such sale deed names of two witnesses are disclosed - Jayaben and Rahul, who is expired, whereas Jayaben has made a statement before the police during investigation that complaint has not signed in her presence and she is not knowing the complainant. Therefore, though complainant is of 84 years old lady, fact remains that she should have been careful in placing the information before the police wherein their is difference in her statement that accused No.1 has forged documents and that somebody has also put a signature of the complainant, wherein two witnesses have endorsed the execution of such documents by her. If it is so, then as per the pleadings, probably such Jayaben would also needs to be considered as an accused for putting a signature as a witness as if complainant has not executed the sale deed though there is specific statement by her to the police that complainant has not signed documents in her presence and that she does not know the complainant. However, it seems that probably correct factual scenario is not brought on record by the complainant. 4. It is further alleged that on the same day, i.e. when sale deed in favour of mother of the accused No.1 has been executed on 23.01.1985, accused No.1 has also forged one power of attorney as well as possession note in his favour but without endorsement of any witnesses. It is further alleged that even after such sale transactions, there is no change in revenue record and complainant is paying taxes till complaint was filed. It is further alleged that on 12.06.2003, when agreement to sale was executed by accused No.1 AR Ashar as forged power of attorney holder with accused No.4 and accused No.2. However, such documents are not registered and its details are not available with the government authority and it was never acted upon. It is further alleged that accused No.1 AR Ashar has entered into registered sale agreement with accused Nos.2 and 4 on 01.06.2010 as power of attorney holder of the complainant. However, above referred forged sale deed and power of attorney deed in favour of the accused No.1 and his father are probably not disclosed and they were not attached with the newly executed sale deed. It is further alleged that such forgery is completed with the help of accused Nos. However, above referred forged sale deed and power of attorney deed in favour of the accused No.1 and his father are probably not disclosed and they were not attached with the newly executed sale deed. It is further alleged that such forgery is completed with the help of accused Nos. 2 and 3 and when accused Nos.4 and 5 have endorsed as two witnesses to such transactions, they all have jointly committed the forgery with complainant. It is further alleged that therefore on 08.08.2010 complainant has filed one application before JP Police Station, Vadodara. It is further alleged that PAN number has not been disclosed in such transactions, though it is mandatory. It is further alleged that when some builders have placed the board on premises, the complainant has lodged a complaint before the JP Road Police Station. 5. It is further contended that on 20.09.2010 accused No.5 has filed one Special Civil Suit No. 518 of 2010 before the Court of Civil Judge (SD), Vadodara for specific performance of agreement to sale deed by the accused Nos. 1, 2 and 4. It is also prayed in such suit to protect the sale deed dated 01.06.2010 wherein said accused No.5 was a witness. 6. It is further alleged that in such suit, when notice was not served upon complainant, but tried to serve upon so called power of attorney holder being accused No.1 AR Ashar without disclosing address of any one of them but serving the notice through accused No.4 which proves that they have a connection and nexus amongst them. It is further alleged that original forged documents in the form of power of attorney deed, the sale deed and possession receipt, alleged to have been executed in the year 1985 by the complainant in favour of accused No.1 are nowhere traceable in the record of the Executive Magistrate. Therefore, it is alleged that when accused No.4 is sought for title clearance by way of advertise in news paper, it confirms the conspiracy hatched by the accused. 7. It is further submitted that on 06.01.2011 accused Nos. 2 and 4 had filed Regular Civil Suit No.29 of 2011 against complainant and accused No.1 seeking permission for construction and restrained against abstraction. However, in such suit other accused were not made party though they have filed suit for the same land. 7. It is further submitted that on 06.01.2011 accused Nos. 2 and 4 had filed Regular Civil Suit No.29 of 2011 against complainant and accused No.1 seeking permission for construction and restrained against abstraction. However, in such suit other accused were not made party though they have filed suit for the same land. It is submitted that the suits were filed with malice to hide that accused are bona fide purchase of the property. 8. The serious allegations have been levelled against investigating agency in para 3.11 of the petition, when it is stated that though police had taken many specimen signatures of the accused and all the witnesses, they do not sent it to the FSL and if the same were sent, its report is not placed on record. However, the fact remains that investigating agency has filed charge sheet against respondent Nos. 2 to 5 as accused Nos. 2 to 5 and also against accused No.1 but it could not be forwarded to face charges since police could not trace him. 9. Ultimately after trial, for which also, petitioner - complainant has several grievances, the trial Court has by its judgment and order dated 29.12.2014 acquitted all the accused from all the charges. When such judgment of acquittal was challenged by the investigating agency – State in Criminal Appeal No.21 of 2015 ultimately, the Sessions Court has also by its judgment and order dated 19.11.2015, while dismissing the appeal confirmed the judgment of acquittal of accused Nos. 2 to 5 being respondent Nos. 2 to 5 herein in Criminal Case No.49519 of 2011 (old case No.803 of 2011). 10. Aggrieved by both above judgments of acquittal of respondent Nos. 2 to 5, complainant has preferred this revision on several amongst following grounds; - documents and specimen signatures were never send to the FSL – even if they were sent, the report were never placed and proved before the trial Court – the trial Court has not considered the provisions of Section 319 of the Code of Criminal Procedure with reference to accused No.1 AR Ashar, who is absconder. - documents produced before the trial Court were no appreciated in its true perspective – there are contrary observation by the trial Court in evaluation of some of the documents. - the trial Court has not given cogent reasons for its conclusion of innocence of the accused. - documents produced before the trial Court were no appreciated in its true perspective – there are contrary observation by the trial Court in evaluation of some of the documents. - the trial Court has not given cogent reasons for its conclusion of innocence of the accused. - discussion and relying upon few depositions it is contended that though it is very logical with original forge power of attorney deed may be either with the absconding accused or with the present accused, who have purchased same land from accused No.1 – AR Ashar. The investigating agency has never bothered to find out such forge documents. - contrary to above submissions, it is also pleaded that production of forge copy from the custody of the accused is relevant to consider them as a co-accused. - comparison of scrutiny by the trial Court is not permissible as provided under Section 73 and 43 of the Evidence Act. - the judgment of the trial Court is self contradictory – accused have lost their application at exhibit 5 before the Civil Court to protect their right, both before the Civil Court as well as the appellate Court so also before the High Court and appellate Court has also describe that there is larger conspiracy. - However, it is to be recollected here that in fact, Civil Court had considered the issue at interim stage and directed both the sides to maintain status quo, thereby such interim relief does not confirm the rights of the parties finally and several allegations are yet not come to an end wherein both the parties have to prove their rival claims - the trial Court and appellate court have not considered and appreciated all the evidences on record. 11. Petitioner has also relied upon following decisions; (1) Kaptan Singh vs. State of Madhya Pradesh reported in 1997 (4) Supreme 211 (2) Ayodhya Dube vs. Ram Sumer Singh reported in AIR 1981 SC 1415 (3) Bablu Kumar vs. State of Bihar reported in 2015 (2) GLH 818 submitting that in case of gross miscarriage of justice and manifest illegality of the trial Court, High Court was justified in directing the retrial. 12. 12. As against that, if we peruse the impugned judgments of acquittal both the above trial Court as well as appellate Court, it becomes clear that none of the Court has committed any irregularity, which may result into or may be considered as illegality, so as to convict the present respondent Nos. 2 to 5. The trial Court has recorded all the relevant material produced before it and discussed rival submissions and evidence adduced before it in detail and after reproducing the relevant provisions of law as well as referring decisions on the issue, discussed the evidence in as many as more than 10 neatly typed pages, but came to the conclusion that there is no sufficient, cogent and reliable evidence on record to prove that accused Nos. 2 to 5 i.e. respondent Nos. 2 to 5 have involved themselves in any conspiracy with accused Nos.1 AR Ashar and that it is came on record that such person is in existence and, therefore, there is no substance in the alternative case of the prosecution that probably respondent Nos. 2 to 5 have created forge documents in the name of AR Ashar to show that they are bona fide purchaser of the value and thereby he is sole accused. 12.1 While observing and coming to the conclusion, the trial Court has specifically observed (in para T(1) on page 32 of the trial Court’s judgment dated 29.12.2014) that in fact it is evident from record that investigating officer has failed to investigate the crime properly and that even investigating officer has not deposed before the trial court that respondent Nos. 2 to 5 had forged any documents to take any undue advantage. Therefore, when prosecution fails to prove that the sale deed in favour of respondent Nos. 2 to 5 executed by AR Ashar could not be proved is a forged document and when it is proved on record, said accused No.1 had executed the sale deed in favour of accused Nos. 2 to 5 and thereby transfer the property which was otherwise purchased by him in name of his mother from the complainant and thereby when respondent Nos. 2 to 5 there was no reason or nexus to verify about the complainant, it cannot be said that accused Nos. 2 to 5 have committed any forgery with AR Ashar when person namely AR Ashar is in existence. 2 to 5 there was no reason or nexus to verify about the complainant, it cannot be said that accused Nos. 2 to 5 have committed any forgery with AR Ashar when person namely AR Ashar is in existence. The trial Court has also observed that only because AR Ashar is not present for the trial, present respondents cannot be convicted. The trial Court has also observed that so far as allegations regarding forgery is concerned, it is not with reference to sale deed in favour of respondent Nos. 2 to 5 but it is with reference to power of attorney deed and sale deed if any, in existence in the name of Neelaben R. Ashar, mother of accused No.1 AR Ashar. It is also observed that when such power of attorney was came in existence, practically respondent Nos. 1 and 2 were teenager and, therefore, when there is no allegations regarding forgery committed by them with such documents there is no reason to convict them. It is also recorded by the trial Court that even if details of the complainant is verified, wherein it is alleged by the complainant that she has never executed a power of attorney deed in favour of accused No.1 AR Ashar, it is evident from record that prosecution has failed to prove such allegations and thereby when present respondents were bona fide purchaser of the value from AR Ashar and when they paid the amount for purchasing the property under reference and when there is no reference to that, who has created the forge documents and thereby when there is lake of evidence on record to prove that present respondents have created forge documents, they are acquitted from the charges. 12.2 The perusal of the judgment by the appellate Court makes it clear that the appellate Court has verified the impugned judgment of the trial Court relying upon available record before it and came to the conclusion that to prove the commission of offence of forgery in the form of forge power of attorney deed in favour of accused No.1, there must be cogent and reliable evidence to that effect and when in absence of such evidence when there is no evidence on record during the trial that respondent Nos. 2 to 5 have forged such documents there is no irregularity or illegality in the judgment by the trial Court and, therefore, after referring relevant submissions by both the sides confirming the acquittal of accused Nos. 2 to 5. 12.3 It is also evident from record that petitioner herein has taken a plea regarding powers of the trial Court to verify the documents but appellate Court has dealt with such issue also in detail for concluding that the trial Court has not committed any error or mistake in appreciating and discussing the available evidence on record so also comparing the signatures and, therefore, there is no irregularity or illegality in the impugned judgment. Reference of exhibit 69 an 79 by the petitioner regarding comparison of signature is not relevant, since exhibit 69 is panchnama regarding collection of specimen signature of the certain witnesses, but when Court has came to the conclusion that those signatures are not made by the accused then it cannot be said that the trial Court has compared the signature because specimen signatures are of the witnesses and not of the accused. 13. I have also perused the entire record and proceedings, I can also not find out any evidence to confirm that present respondents have forged any documents. So far as principle of evidence act with reference to examining the disputed documents and comparing signature is concerned, though petitioner is relying upon some judgments, the fact remains that it was not the sole ground for acquittal but the real reasons and ground for acquittal is absence of requisite evidence against respondent Nos. 2 to 5 to confirm that they are the accused who have committed forgery, initially in the name of AR Ashar, so as to grab the property of the complainant. 14. In all such proceedings one disturbing position is noticed and found almost in all cases i.e. lake of proper investigation by the investigating agency. In the present case, when complainant has lodged a complaint stating that she has not executed the power of attorney deed, it is the duty of the investigating agency to first of all carry out the search of such documents in original, then to seize it and to keep the signatures verified by FSL, so as to confirm that whether such documents were executed by the complainant or not and if not, then by whom. Unfortunately in the present case, investigating agency has probably failed to do so. It is also clear that if original documents are not available during investigation but if its xerox copy having alleged signatures are available, then investigating agency should have carried out investigation and should have got such signatures compared through FSL and should have brought the truth before the Court. 15. Whereas the fact remains that, in fact, there is specific observations and disclosure by the trial Court that investigating agency had not carried out the investigation properly. In fact during hearing of this revision petition considering such observations and factual details emerging from record, this Court has on 19.12.2017 directed the investigating agency as under; “Considering the facts and circumstances, initially, the I.O. has to remain present so as to verify that whether I.O. has ever bothered to find out that where the amount of sale transaction under reference has been credited, more particularly, in whose account, and now, pursuant to document produced before the trial Court on 19.7.2014 by the accused at Sr.No.4 of list of documents, when there is prima facie evidence available on record that probably such amount has been credited to the account of Akshay Ranjitbhai Ashar in his account with Canara Bank at Akota, Vadodara. Therefore, I.O. should have inquired with such bank with regard to the account opening form that may be filled by Akshay Ashar so also person, who has identified him, more particularly, when Akshay Ashar is not traceable during the trial. List the matter on 10.1.2018.” 16. Pursuant to such directions, the investigating agency has brought all original record of investigation and submitted that they could not find out AR Ashar though his details were available during investigation. However, pursuant to observations and directions in order dated 19.12.2017, which are reproduced herein above, the investigating officer has tried to inquire from the concerned bank and find out that the payment made by respondent Nos.2 to 5 towards value of the property under reference disclosed in sale deed in their favour executed by accused No.1 AR Ashar, they have inquired that whether the amount is credited in the account of the AR Ashar and how it has been dealt with, it seems that now investigating agency has came forward with further papers of investigation that amount paid by respondent Nos. 2 to 5 towards value of the property by cheque has been credited in the account of AR Ashar maintained by him with the Canara Bank wherein amount paid by the respondent Nos. 2 to 5 has been credited. The facts of the bank accounts non only confirms such transactions of 02.06.2010 and 04.06.2010, but also confirms that on 04.06.2010 AR Ashar has withdrawn such amount in cash, which is almost about Rs.15 lacs. Unfortunately, investigating agency has failed to investigate on such line at the relevant time, and to find out that how they can catch the accused No.1 who is disclosed by them in Column No.2 of the charge sheet as accused yet not arrested. Therefore, when investigating agency is aware that ultimately they have to file charge sheet against AR Ashar, they remain ideal and silent from making further inquiry and has find out a further investigation by the investigating agency pursuant to such observations wherein it has now been found that AR Ashar has opened his account with the Canara Bank with the help of one Snehal Khambhata, but ultimately he has closed such account but investigating agency has to chase such issue. During such investigation also disclosed by the investigating officer that some other properties have been sold by AR Ashar and when bank account with Canara Bank has been closed by AR Ashar and in that case, investigating officer has to chase such account also and whether he has shifted himself with such account. Since at revisional stage against respondent Nos. 2 to 5, this Court has not to monitor the further investigation, it would not be proper to discuss further about the possibility of involvement of other persons as accused without having any material available on hand. However, it is clear and certain that investigating agency has failed to investigate the offence properly and to chase the investigation so as to find out the real culprit. 17. Therefore, considering the settled legal position though ultimately the Court has to find out the truth and acquittal of one person may not come to an end to searching truth though there may not be any punishment to such person in absence of evidence against him. 17. Therefore, considering the settled legal position though ultimately the Court has to find out the truth and acquittal of one person may not come to an end to searching truth though there may not be any punishment to such person in absence of evidence against him. Thereby, if at all when investigating agency and the trial Court has recorded that AR Ashar is yet to be find out and to be tried, it would be appropriate for the investigating agency to chase the matter for further investigation and to file supplementary charge sheet against him. 18. Considering the observations of the trial Court regarding improper investigation, it would be appropriate to forward original record to the trial Court for its scrutiny and to call for the investigating officer to produce all such original record before the Court and to continue further investigation of the crime against AR Ashar so as to find out him and to prosecute him in accordance with law. 19. So far as other factual aspects are concerned considering the fact that several dispute between the parties are pending, I have restrained myself from discussing any such issue at such revisional stage. 20. In view of above facts and circumstances, revision petition is partly allowed. Though both the judgments are hereby confirmed, it is made clear that investigating agency shall continue with further investigation so as to trace out the real culprit and to file supplementary charge sheet within 90 days from the date of receipt of writ of this judgment. Original record of the investigating agency is initially required to be forwarded to the trial Court for its scrutiny. It cannot be ignored that when there is specific prima facie evidence before the trial Court that respondent Nos. 2 to 5 have paid the amount, it is clear and obvious that investigating agency has failed to take necessary steps as foreseen in above observations. Probably the trial Court could not initiate any actions against the investigating agency since the trail is concentrated to convict respondent Nos. 2 to 5 only. With these observations and directions petition is disposed of. Rule is answered accordingly. Direct service is permitted.