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2020 DIGILAW 319 (GAU)

Aftab Uddin Barbhuiya v. Makaddas Ali Mazumder

2020-03-02

MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Dr. B. Ahmed, learned counsel for the appellant and Mr. BM Choudhury, learned counsel for the accused/respondent. 2. This appeal is directed against the judgment and order passed by learned Chief Judicial Magistrate in CR Case No. 610/2004 acquitting the respondents of the charges under Sections 468/471/34 IPC. 3. As per prosecution case, the appellant filed a complaint before the court of learned CJM on 30.12.2004 alleging that the respondents with dishonest intention, got a sale deed executed on 23.06.2008 forging the signature of the complainant's mother in respect of 4 Bigha, 4 kathas 14 leches of land. It was also alleged in the complaint that Askun Nessa and Amina Khatun executed the deed impersonating Golapjan Bibi, the mother of the complaint at the instigation of the respondents. The respondent Makaddas Ali instituted a civil suit where he produced the said sale deed No. 2480 and on the perusal of the sale deed, complainant came to know about the alleged forgery committed by the respondents, hence, lodged the complaint. Upon receiving the complaint, learned Chief Judicial Magistrate conducted an enquiry u/s. 200 Cr.P.C. and took cognizance against four of the accused persons named in the complaint and issued process. Upon appearance of the respondents, learned CJM framed charges u/s. 468/471 IPC. read with Section 34 to which the respondents pleaded not guilty. Complainant examined five witnesses to establish the charges and on appreciation of evidence, learned Magistrate held that the offence against the appellants were not proved beyond reasonable doubt and acquitted the respondents of all the charges u/s. 468/471/34 IPC. 4. Aggrieved, the complainant/appellant preferred the instant appeal. 5. Learned Counsel, Dr. B. Ahmed for the appellant contends that mother of the complainant died in the year 1978 and the alleged sale deed was executed in the year 1986 and therefore, the sale deed was apparently a forged deed, which was executed by forging the signature of the deceased mother of the complainant However, the learned Magistrate without considering the evidence in its proper perspective acquitted all the respondents who were scribe, witness and beneficiary of the sale deed respectively. 6. I have considered the submissions made by the learned counsel for the appellant, Dr. B. Ahmed and the learned counsel for the respondents, Mr. BM Choudhury and also scrutinized the evidence brought on record. 7. 6. I have considered the submissions made by the learned counsel for the appellant, Dr. B. Ahmed and the learned counsel for the respondents, Mr. BM Choudhury and also scrutinized the evidence brought on record. 7. The complainant in his evidence stated that the respondent Makaddas Ali was his cousin brother (son of maternal uncle). He further stated in his examination-in-chief; that his mother died on 04.05.1978 and before her death, she executed a sale deed in his favour in the year 1977. He also produced and proved a death certificate of his mother, issued in the year 2002. But in his cross-examination, the complainant himself admitted that his mother died on 04.07.1997. He also stated, that prior to the issuance of death certificate at his instance, another death certificate was issued, which was cancelled on the basis of Ms objection. It was also in his evidence that he applied for the death certificate of his mother in the year 2002 by filing an affidavit reflecting the date of death of his mother. He also stated that the death certificate of his mother was issued in the year 2002 on the basis of the document maintained in the Gaon Panchayat, however, no such document from the Gaon Panchayat, on the basis of which, the death certificate was issued in 2002 was produced or proved in the court. It was alleged in the complaint, that Askun Nessa and Amina Khatun executed the sale deed impersonating Golapjan Bibi, mother of the complainant, but, while deposing in court he stated that, some unknown lady impersonated Gulabjan Bibi to execute the sale deed at the instigation of the respondents giving a complete go-bye to her previous statement made in the complaint that Askun Nessa or Amina Khatun impersonated Golapjan Bibi to execute the sale deed. Evidently the sale deed was executed in the year 1986. In view of the above glaring inconsistencies and contradictions, on material facts, i.e., the date of death of the mother of the complainant as well as the execution of the alleged sale deed, the learned Magistrate dis-believed the evidence of the complainant, who examined himself as PW-2. 8. PW-1 was the Deputy Registrar, who deposed about the registration of the sale deed in the year 1986 and there was nothing in his evidence to establish the charge of forgery. 8. PW-1 was the Deputy Registrar, who deposed about the registration of the sale deed in the year 1986 and there was nothing in his evidence to establish the charge of forgery. Though PW-4 & PW-5 deposed about the death of the mother of the complainant, the learned trial court disbelieved their testimony having found inconsistent and contradictory with the oral testimony of P W-1, the complainant, who clearly stated in cross-examination that his mother died in the year 1997. PW-4 sought to depose about the relationship of the parties, but his evidence was also disbelieved having noticed glaring inconsistencies in his testimony and in absence of his personal knowledge. Having considered the evidence of P W- 3, the complainant himself, who failed to substantiate his allegation of forgery or even the basic allegation, that his mother died before the execution of the sale deed, learned Chief Judicial Magistrate came to the finding that the complainant failed to adduce adequate evidence to establish the charges against the appellant beyond reasonable doubt, and accordingly recorded the order of acquittal. Though the complainant alleged that his mother died in the year 1978 and the sale deed was executed in 1986, such averment was belied by himself during evidence by stating that his mother died in 1997. Evidently the complainant also failed to establish the charge of impersonation against the appellant, inasmuch as, in the complaint, the complainant stated that Askun Nessa and Amina Khatun executed the sale deed by impersonating and forging the signature of his mother, whereas while deposing in court, the complainant stated, that some unknown ladies executed the alleged sale deed by impersonating his mother. The learned Chief Judicial Magistrate having appreciated the evidence adduced by the appellant exonerated the respondents. Admittedly the complainant failed to adduce any cogent evidence to prove that the respondents executed the sale deed fraudulently. The entire case of the complainant was banking on the allegation that the sale deed was executed after death of his mother and the same was used by the respondent No. 1 for his benefit in a civil suit. Evidently the sale deed was executed in the year 1986. However, complainant alleged that his mother died in 1978 and therefore, she could not have executed the sale deed in 1986. However, during evidence, complainant admitted that his mother died in the year 1997. Evidently the sale deed was executed in the year 1986. However, complainant alleged that his mother died in 1978 and therefore, she could not have executed the sale deed in 1986. However, during evidence, complainant admitted that his mother died in the year 1997. The genuineness of the death certificate of the mother of the complainant produced by the complainant was also not beyond doubt. If all the glaring inconsistencies in the evidence of the PW-3, the complainant and all other materials are taken into consideration, the finding of the learned Magistrate can by no stretch of imagination be held to be unreasonable. 9. It is the settled position of law that unless there is compelling circumstance or the order of acquittal is perverse or suffers from unreasonableness or gross illegality resulting on miscarriage of justice, the order of acquittal cannot be interfered. Even if two views are possible, the appellate court is not supposed to disturb the finding of acquittal by substituting the view of the trial court by it's own view (See Ashok Roy Vs. State, (2014) 5 SCC 713 : Shyam Babu Vs. State of U.P. (2012) 8 SCC 651 : Mukeshbhai Gopalbhai Vs. State of Gujrat (2010) 12 SCC 224 . 10. The evidence brought on record, as discussed hereinbefore, clearly demonstrated that the complainant miserably failed to substantiate the allegations made in the complaint Having regard to the facts and circumstances of the case and the evidence brought on record. I am of the view that the finding of the learned Magistrate recording the acquittal of the respondents was quite reasonable and has not suffered from any illegality or perversity, calling for any interference by this Court. The appeal therefore, appears to be without any merit and consequently stands dismissed. 11. Send back the LCR.