Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 272 (JHR)

Dharamnath Purti v. State of Jharkhand

2023-03-01

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This revision application is directed against the judgment dated 28.06.2011 passed by learned Additional Judicial Commissioner-I, Khunti in criminal appeal No. 89/2009 whereby the judgment of conviction and order of sentence dated 07.05.2009 passed by learned J.M. 1st Class, Khunti corresponding to G.R. No. 140/2000, T.R. No. 548/2009, wherein the petitioners were convicted for the offence under Section 420, 467, 468, 471, 120B of the IPC and sentenced to undergo R.I. for a period of two and half years with a fine of Rs.1000/- for the offence u/s 467 IPC and in case of default of payment of fine further to undergo S.I. for seven months. However, the learned trial court did not pass any separate sentence for the other offence in view of Section 71 of the IPC and opined that the passed sentence would meet the ends of justice, has been affirmed with modification that the petitioners shall undergo S.l. for 2 months in place of 7 months in case of default of payment of fine under Section 467 IPC and the appeal filed by the petitioners was dismissed. 3. The brief fact of the case is that the mother of the informant after taking V.R.S. from H.E.C. Hatia, received an amount of Rs. 1,92,000/ pursuant to which she opened an account on 30.05.1997 in the Post Office, H.E.C. Ranchi. Later on the said account was transferred to Khuti Post Office. It has been further alleged that the mother of the informant used to visit the house of Mukund Munda, who was her brother, for the purpose of purchasing a land. One day, petitioner no. 1, who was her nephew and petitioner no. 4, who was the Agent of Post Office, Khunti, Ranchi, along with Mukund Munda (brother) forcefully took thumb impression of mother of the informant on different papers and fraudulently withdrew Rs.1,82,400/ from M.I.S. Account of the mother of the informant with connivance with other petitioners. It has further been alleged by the informant that her mother had also sent a petition to the S.S.P. Ranchi, which was also sent to Police Station, but no action was taken and the informant’s mother expired on 25.06.1999. 4. Mr. It has further been alleged by the informant that her mother had also sent a petition to the S.S.P. Ranchi, which was also sent to Police Station, but no action was taken and the informant’s mother expired on 25.06.1999. 4. Mr. Abhishek Kumar, learned counsel appearing for the petitioners assailed the impugned judgment and submits that the mother of the informant, who was said to be a victim died on 25.06.1999 and during her lifetime she has not made any complain before the Police for lodging any F.I.R. The present case has been lodged by daughter of the victim, who is the informant in the present case after an inordinate delay of approx nine months i.e. on 18.03.2000, although she has categorically stated in her deposition that her mother had narrated the entire allegations to her during her lifetime, but still the informant did not made any complain before the Police. Further, that mother of the informant had made an application for withdrawal of Rs. 1,92,000/- on 06.02.1999 and on 09.02.1999 after deduction of penalty amount of Rs. 9,600/- the balance amount of Rs. 1,82,400/- was withdrawn by her, as is evident from Exhibit-3 and further, out of said amount of Rs. 1,82,400/- she again deposited an amount of Rs.1,02,000/- in the account of Post Office, Khunti, Ranchi on 20.12.1999. Thereafter, on 03.01.2000, after adding an interest of Rs.7,280/- in the principal amount of Rs.1,02,000/- and deducting an amount of Rs.200/ as penalty, the total amount of Rs.1,09,086/ was withdrawn by the informant, Rani Sahdeo herself, as is evident from Exhibit-3 and informant has herself categorically stated that the such amount was withdrawn by herself. Further, except the oral evidences of seven witnesses PW 1 to PW 7, who have stated that deceased Nandi Devi was illiterate lady and her thumb impression was forged one, there was no other evidence to corroborate the truth regarding the thumb impression. Though, initially the case was instituted against Mukund Munda (died), Dharamnath Purti and Kandru Mahto but later on by supplementary charge-sheet Istanishalas Ekka and Ishaque Minz (Petitioner no. 2 and 3) have been made accused in this case who were the employees of post office and as a matter of fact they have nothing to do with this case. Hence, the impugned judgment requires interference and the petitioners deserve to be acquitted. 5. 2 and 3) have been made accused in this case who were the employees of post office and as a matter of fact they have nothing to do with this case. Hence, the impugned judgment requires interference and the petitioners deserve to be acquitted. 5. Learned APP opposes the contention of the learned counsel for the petitioners and submits that no interference is required as there is concurrent finding and there is no error in the finding given by the courts below. 6. Having heard the learned counsel for the parties and after going through the LCR; it appears that out of withdrawal amount of Rs.1,82,400/- the mother of informant had again deposited an amount of Rs.1,02,000/- in the account of Post Office, Khunti, Ranchi on 20.12.1999; however on 03.01.2000, after adding an interest of Rs.7,280/- in the principal amount of Rs.1,02,000/- and deducting an amount of Rs.200/- as penalty, the total amount of Rs.1,09,086/- was withdrawn by the informant, Rani Sahdeo herself. The informant herself categorically stated that the rest amount was withdrawn by herself. It further transpires from the record that the mother of the informant during her lifetime has not made any complain before the Police for lodging any F.I.R about the occurrence and even the informant has lodged an FIR after delay of approx nine months though as per the version of the informant herself her mother had informed her about the forceful thumb impression, but for the reason best known to the informant the delay in lodging the FIR has not been explained. It is also a matter of fact that except the oral evidences of witnesses who have stated that deceased Nandi Devi was illiterate lady and her thumb impression was forged one there was no other evidence to corroborate the truth regarding the thumb impression. Mere filing the documents and exhibiting the same by the prosecution cannot be presume to be forged document, thus sections 463 and 464 of the I.P.C. as contemplated regarding the ingredients of forged document is missing in this case. The condition precedent for an offence under section 467 is forgery and in this case the ingredients of section 420/467/468/471 of I.P.C. is not attracted by the evidence given by the prosecution. The condition precedent for an offence under section 467 is forgery and in this case the ingredients of section 420/467/468/471 of I.P.C. is not attracted by the evidence given by the prosecution. The Hon’ble Supreme Court on the question of forgery has laid down the law in the case of Mohammed Ibrahim vs. State of Bihar and Another, (2009) 8 SSC 751 held that if what is executed is not a false document, there is no forgery and if there is no forgery then Section 467 of IPC will not be attracted. The relevant paragraph is quoted herein-below: “14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories: 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a “false document” if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses. 15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of “false documents”. 15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of “false documents”. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant’s land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category. 16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner’s behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “false documents” it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. 17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor js he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.” 7. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.” 7. Further, once the entire alleged amount has already been withdrawn by the informant herself, the criminality on part of the petitioners does not arise at all. At the cost of repitation, the present F.I.R. has been lodged by the informant against the petitioners after approx nine months which appears to be with some ulterior motive as it also transpires from record that there was previous enmity between the two parties and only to settle the personal scores this case might have been instituted. Be that as it may; on the face of the present case, it can be said without any hesitation that the prosecution has miserably failed to prove the alleged offence by adducing cogent and trustworthy evidence. In other words, the present case is based on a fragile and week evidence. 8. Consequently, the judgment dated 28.06.2011 passed by Additional Judicial Commissioner-I, Khunti in criminal appeal No. 89/2009 and judgment of conviction and order of sentence dated 07.05.2009 passed by learned J.M. 1st Class, Khunti corresponding to G.R. No. 140/2000, T.R. No. 548/2009 are hereby, quashed and set aside. 9. The petitioners shall be discharged from the liability of their bail bonds. 10. Accordingly, the instant criminal revision application, is hereby, allowed and disposed of. Pending I.A. if any, is also closed. 11. Let a copy of this order be communicated to the courts below and the lower court record be sent to the court concerned forthwith.