Madras High Court
State Represented By vs /39 on 21 August, 2012
Crl.A.Nos.389, 390, 391, 393, 394 and 395 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Judgment Date of pronouncing Judgment
24.10.2018 20.12.2019
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.Nos.389, 390, 391, 393, 394 and 395 of 2013
and
M.P.Nos.1 of 2014 (3 Nos.)
State represented by
The Deputy Superintendent of Police
Erode Town, Erode District
(Erode Town P.S.
Crime No.1776/1998)
.. Appellant in Crl.A.Nos.389, 390 &
391 of 2013
State represented by
The Deputy Superintendent of Police
Erode Sub Division,
Erode District.
(Crime No.1376/1998
of Erode Town P.S.)
.. Appellant in Crl.A.Nos.393, 394 &
395 of 2013
Versus
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V.Rangaraman (A2) .. Respondent in Crl.A.Nos.
389 and 393 of 2013
Ponnusamy (A3) .. Respondent in Crl.A.Nos.
390 and 394 of 2013
E.K.Palanisamy (A1) .. Respondent in Crl.A.Nos.
391 and 395 of 2013
Criminal Appeal Nos. 389, 390 and 391 of 2013 filed under
Section 378 of Cr.P.C. against the Common Judgment of acquittal
passed by the learned Principal Sessions Judge, Erode District at
Erode in C.A.Nos.89, 90 and 95 of 2012 dated 21.08.2012.
Criminal Appeal Nos.393, 394 and 395 of 2013 filed under
Section 378 of Cr.P.C. against the Common Judgment of acquittal
passed by the learned Principal District and Sessions Judge, Erode
District at Erode in C.A.Nos.100, 101 and 111 of 2012 dated
21.08.2012.
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For Appellant in : Mr.R.Ravichandran
all Crl. Appeals Government Advocate (Crl. Side)
For Respondent in : Mr.A.Ramesh, Senior Counsel
Crl.A.Nos.389, 390 for
393 & 394 of 2013 Mr.V.Selvam
For Respondent in : Mr.A.Ramesh, Senior Counsel
Crl.A.Nos. 391 and for
395 of 2013 Mr.V.Vijayakumar
Common Judgment
The brief facts leading to the filing of Crl.A.Nos.389, 390
and 391 of 2013 is as follows:-
1.1 The appellant police in Crl.A.Nos.389, 390 and 391 of
2013 registered a case against the respondents in the above
Criminal Appeals for the offences under Sections 420, 419, 467,
468 and 471 r/w. Section 109 IPC in Crime No.1776/1998 and
after investigating the case, laid the charge sheet before the
learned Judicial Magistrate No.II, Erode, and the learned Judicial
Magistrate, after completing the formalities, taken the charge
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sheet on file in C.C.No.592 of 2007 and framed the charges
against all the accused for the above offences.
1.2 In order to prove the case of prosecution, during the
trial, before the trial Court, on the side of prosecution, as many
as 9 witnesses, viz., PW.1 to PW.9 were examined and 26
documents were marked as Exs.P1 to P26. After completing the
prosecution witnesses, when incriminating circumstances culled
out from the evidence of prosecution witnesses were put before
the accused, they denied as false.
1.3 After completing the trial and hearing the arguments
advanced on either side and perusing the oral and documentary
evidences, the trial Judge found the respondents/accused guilty
for the above offences and convicted the first accused under
Sections 467, 468 and 420 IPC and sentenced to undergo rigorous
imprisonment for two years for each section and to pay a fine of
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Rs.1,000/- in default to undergo rigorous imprisonment for two
months under each section, and convicted the second and third
accused under Sections 467 and 468 r/w.109 IPC and sentenced to
undergo rigorous imprisonment for two years each under each of
sections and to pay a fine of Rs.1,000/- in default to undergo
rigorous imprisonment for two months each under each section.
1.4 Challenging the said judgment of conviction and
sentence rendered by the learned Judicial Magistrate No.II,
Erode, the accused preferred three separate appeals in Criminal
Appeal Nos. 89, 90 and 95 of 2012 before the learned Principal
Sessions Judge, Erode. The learned Principal Sessions Judge,
upon hearing the arguments advanced on either side and perusing
the oral and documentary evidences, by a common judgment
dated 21.08.2012, came to the conclusion that the prosecution
has not at all established any of the offences against the accused
and acquitted all the accused from the charges levelled against
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them, thereby set aside the judgment of the learned Judicial
Magistrate No.II, Erode, dated 20.04.2012 made in C.C.No.592 of
2007.
1.5 Challenging the said judgment of acquittal passed by
the learned Principal Sessions Judge, Erode, in Crl.A.Nos.89, 90
and 95 of 2012 dated 21.08.2012, the State has preferred
Crl.A.Nos.389, 390 and 391 of 2013 before this Court.
2. The case of prosecution in Crl.A.Nos.389, 390 and 391
of 2013 is as follows:-
2.1 The Nanja land measuring about 85 cents, comprised
in Old T.S.No.1369 at Kuppipalam Kuttaarai, New T.S.No.90,
Ward No.2, Block No.28, Erode was originally owned by one
Chokkalinga Mudaliar, the maternal grand father of PW.1 and he
having purchased the same under the Registered Sale Deed dated
29.10.1945 under Ex.P2. The said Chokkalinga Mudaliar died in
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the year 1950 and he was survived by his son V.C.Periyasamy
Mudaliar and two daughters Muthulakshmi and Santhayammal.
2.2 Periyasamy Mudaliar, his son Periyasamy Mudaliar
executed a Settlement Deed dated 24.07.1950 under Ex.P3 in
favour of Vinayathammal, second wife of Chokkalinga Mudaliar in
respect of the income from the said land towards maintenance
till the death of Vinayathammal and it has been stated
categorically in the said Settlement Deed that Vinayathammal
had no right to sell, mortgage or to create any encumbrance over
the said property and after her life time, the said property was to
be reverted back to Periyasamy Mudaliar and his legal heirs.
2.3. After the death of Periyasamy Mudaliar in the year
1996 and his wife, Periyasamy Mudaliar's sisters, viz.,
Muthulakshmi, Santhayammal and legal heirs of Santhayammal
viz., defacto complainant, his brothers, sisters, his father and
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legal heirs of Muthulakshmi (her 4 sons) became the owners of
the said land and they were in possession and enjoyment of the
said land measuring 85 cents. Patta and all other revenue records
stood in their names and they were paying land tax to the
revenue authorities for the land owned by them.
2.4 A1 is a land grabber indulged in malpractices of
forging documents relating to valuable lands and A1 colluded with
A2 and A3, forged a Will dated 22.12.1986, registered as
Document No.251 of 1986 in the name of Vinayathammal, second
wife of defacto complainant's grandfather Chokkalinga Mudaliar
and also Power of Attorney dated 28.01.1987, registered as
Document No.14 of 1987, forging the thumb impression of the
said Vinayathammal. Further, A2 and A3 have illegally abetted
A1 by transferring patta and making subdivision of Survey Number
in the name of A1 and made illegal entries in the revenue records
in favour of A1 even before the death of Vinayathammal on the
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basis of the Will dated 22.12.1986.
2.5 Based on the complaint of PW.1, Erode Town Police
registered a case in Crime No.1776 of 1998 under Sections 420,
419, 467, 468 and 471 r/w. Section 109 IPC and took up the
investigation of the case. The Deputy Superintendent of Police,
Erode Town, after completing the investigation, filed a charge
sheet before the learned Judicial Magistrate No.II, Erode against
the accused, for the offences under Sections 420, 419, 467, 468
and 471 r/w. Section 109 IPC and the same was taken on file by
the learned Magistrate in C.C.No.592 of 2007 and the learned
Magistrate, after completing trial and upon hearing the
arguments, by judgment dated 20.04.2012 convicted and
sentenced the accused as above. Against which, the appellants
moved the learned Principal Sessions Judge, Erode in
Crl.A.Nos.89, 90 and 95 of 2012, and the learned Principal
Sessions Judge, on 21.08.2012, allowed the said appeals and
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acquitted the accused. Aggrieved over the same, the State is
before this Court.
3. The learned counsel for the appellant/State in
Crl.A.Nos.389, 390 and 391 of 2013 would submit that the lower
appellate Court has failed to appreciate or access the value of
evidence from proper perspective and it is based on surmises.
The lower appellate court also failed to note that in a case
wherein civil nature arises, the ocular evidence of the
prosecution witnesses and the documents submitted by them
would be scrutinized with diligent care. The lower appellate
Court also failed to note that the property in dispute,
undisputedly belongs to the family of PW.1 as ancestral property.
The lower appellate Court also failed to note that the alleged
Will dated 22.12.1986 executed by the said Vinayathammal in
favour of A1 was disproved by the expert opinion Ex.P26 that the
thumb impression found in the Will is not her thumb impression
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and the lower appellate Court ought not to have discarded the
expert opinion. The lower appellate Court also failed to note
that as per Ex.P3, Settlement Deed dated 24.07.1950,
Vinayathammal had no right to encumber the property and in
fact, she was given only life estate over the property and further,
the Settlement Deed is not disputed by A1. The lower appellate
Court, without looking into the documentary evidence, had
passed the order of acquittal on imaginary grounds. The
judgment of acquittal passed by the lower appellate Court is bad
in law and hence, liable to be set aside.
4. The brief facts leading to the filing of Crl.A.Nos.393,
394 and 395 of 2013 is as follows:-
4.1 The appellant police in Crl.A.Nos.393, 394 and 395 of
2013 registered a case against the respondents in the above
Criminal Appeals for the offences under Sections 182, 420, 466,
467, 468 and 420 r/w.109 IPC in Crime No.1376/1998 and after
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investigating the case, laid the charge sheet before the learned
Judicial Magistrate No.II, Erode, and the learned Judicial
Magistrate, after completing the formalities, taken the charge
sheet on file in C.C.No.591 of 2007 and framed the charges
against all the accused for the above offences.
4.2 In order to prove the case of prosecution, during the
trial, before the trial Court, on the side of prosecution, as many
as 6 witnesses, viz., PW.1 to PW.6 were examined and 9
documents were marked as Exs.P1 to P9. After completing the
prosecution witnesses, when incriminating circumstances culled
out from the evidence of prosecution witnesses were put before
the accused, they denied as false.
4.3 After completing the trial and hearing the arguments
advanced on either side and perusing the oral and documentary
evidences, the trial Judge found the respondent/accused guilty
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for the above offences and convicted the first accused under
Section 420 IPC and sentenced to undergo rigorous imprisonment
for one year and to pay a fine of Rs.2,000/- in default to undergo
rigorous imprisonment for two months and convicted the second
and third accused under Sections 466, 467, 468 and 420 r/w.109
IPC and sentenced to undergo rigorous imprisonment for one year
each for each section and to pay a fine of Rs.1,000/- each in
default to undergo rigorous imprisonment for two months each
for each section.
4.4 Challenging the said judgment of conviction and
sentence rendered by the learned Judicial Magistrate No.II,
Erode, dated 18.05.2012, the accused preferred three separate
appeals in Criminal Appeal Nos.100, 101 and 111 of 2012 before
the learned Principal Sessions Judge, Erode. The learned
Principal Sessions Judge, upon hearing the arguments advanced
on either side and perusing the oral and documentary evidences,
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by a common judgment dated 21.08.2012, came to the conclusion
that the prosecution has not at all established any of the offences
against the accused and acquitted all the accused from the
charges levelled against them, thereby set aside the judgment of
the learned Judicial Magistrate No.II, Erode, dated 18.05.2012
made in C.C.No.591 of 2007.
4.5 Challenging the said judgment of acquittal passed by
the learned Principal Sessions Judge, Erode, in Crl.A.Nos.100, 101
and 111 of 2012, the State has preferred Crl.A.Nos.393, 394 and
395 of 2013 before this Court.
5. The case of prosecution in Crl.A.Nos.393, 394 and 395
of 2013 is as follows:-
5.1 The defacto complainant submitted that the land
comprised in original Old S.F.No.100/A1, 100/C1, Old
S.F.No.85/2, 85/3, 85/4, resurvey Ward A, Block No.1.5,
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T.S.No.2,3,4, Erode Town measuring about 35,000 square feet
originally owned by two brothers, viz., Arumuga Mudaliar and
Marimuthu Mudaliar, they having purchased the same under the
registered sale deed dated 04.05.1942, registered as document
No.1201 of 1942. Subsequently, a partition deed dated
31.12.1956, registered as document No.948 of 1957 was executed
between them, partitioning the said land between them.
5.2 The said Marimuthu Mudaliar and his sons executed a
registered partition deed dated 19.07.1969 partitioning the share
of land belonging to Marimuthu Mudaliar, among themselves. In
the same way, the land belonging to Arumuga Mudaliar was
partitioned among Arumuga Mudaliar and his sons as per the
Panchayat dated 25.02.1970. After the death of Marimuthu
Mudaliar and Arumuga Mudaliar, their respective legal heirs,
including the defacto complainant, became the absolute owners
of the said land and they were in absolute possession and
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enjoyment of the said land and they paid urban land tax for the
said land. Patta, Chitta, Adangal and all other revenue records
relating to the said land stood in their names.
5.3 The appellant/A1 is a notorious land grabber and
indulged in malpractices of forging documents relating to
valuable lands. With the illegal intention of grabbing the above
said land owned by the defacto complainant and his family
members, A1 produced forged electricity receipts and forged
property tax receipts before the Tahsildar/A2 for transfer of
patta. The Surveyor/A3 filed false report before the Tahsildar/A2
and with active connivance of A2 and A3, A1 got the patta
transferred in his name for the said land illegally. The defacto
complainant filed appeal before the District Revenue Officer,
Erode challenging transfer of patta in the name of A1. The
District Revenue Officer, Erode passed detailed order dated
10.03.1998, cancelling patta transfer made in the name of A1 on
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the ground that the Tahsildar had effected transfer of patta in
favour of A1 without any title documents and only on the basis of
forged tax receipts and forged electricity receipts. The said
order has become final as A1 has not challenged the same before
any authority or before any Court.
5.4 The complainant lodged a complaint before the
Superintendent of Police, Erode District and the same was
forwarded to the Inspector of Police, Erode Town Police Station,
Erode District.
5.5 Based on the complaint, the Inspector of police
registered a case in Erode Town Police Station Crime
No.1376/1998, for offences under Sections 182, 420, 466, 467,
468 and 420 r/w.109 IPC against the accused persons (A1 to A3)
and the appellant police took up investigation.
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5.6 After completion of the detailed investigation, final
report was filed against the accused persons for the offences
under Sections 182, 420, 466, 467, 468 and 420 r/w.109 IPC and
the same was submitted to the Hon'ble Judicial Magistrate Court,
Erode District and the same was taken on file in C.C.No.591 of
2007.
5.7 After full-fledged trial and upon hearing the
arguments, the trial Court, on 18.05.2012, convicted and
sentenced the accused as above. Against which, the accused
moved the learned Principal District and Sessions Judge, Erode in
Crl.A.Nos.100, 101 and 111 of 2012, and the learned Principal
District Sessions Judge, by a common judgment dated 21.08.2012,
allowed the said appeals and acquitted the accused. Aggrieved
over the same, the State is before this Court in Crl.A.Nos.393,
394 and 395 of 2013.
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6. The learned counsel for the appellant/State in
Crl.A.Nos.393, 394 and 395 of 2013 would submit that the lower
appellate Court has failed to appreciate or access the value of
evidence from proper perspective and it is based on surmises.
The lower appellate Court ought not to have interfered with the
order of the trial Court since A1 had not clearly established his
claim of either title or possession of the property involved in this
case. The lower appellate court also failed to note that in a case
wherein civil nature arises, the ocular evidence of the
prosecution witnesses and the documents submitted by them
would be scrutinized with diligent care. The lower appellate
Court also failed to consider that in a criminal case pertaining to
the right over a property, the burden lies on A1 to stake his claim
and to documents submitted by A1 in this regard. The lower
appellate Court also failed to note that the property in dispute,
undisputedly belongs to the family of PW.1 as ancestral property.
The lower appellate Court also failed to note that without any
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piece of evidence, A1 transferred the patta and other connected
revenue records in his name by misrepresentation and for that,
A2 and A3 obliged. The lower Appellate Court failed to note that
A2 and A3 before transferring the patta had not applied their
minds and passed an order without verifying the documents that
too, without any notice to the parties concerned. The lower
Appellate Court also failed to note that the patta transferred in
the name of A1 was cancelled on 10.03.1998 (Ex.P2) based on the
letter of PW.1 dated 08.01.1998. The judgment of acquittal
passed by the lower appellate Court is vague and hence, liable to
be set aside.
7. The learned counsel appearing for the respondents in
all the cases would submit that on completion of the first
investigation, the appellant had closed the said case as “Mistake
of Fact” through RCS report dated 29.09.2005 along with learned
Public Prosecutor's opinion. On 20.01.2006, the case was
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reopened for further investigation, vide order of the learned
Judicial Magistrate No.II, Erode, at the request of DSP, Erode.
The learned counsel for the respondents would also submit that
during second investigation, the Police have not investigated
further, but on the evidence collected during the first
investigation and on the same report, they laid charge sheet,
which warrants interference.
8. The learned counsel appearing for the respondents
would submit that first respondent/A1 obtained patta based on
the basis of possession, not based on any forged document and
also they had not obtained any document forged. In the Power of
Attorney, signature of first respondent/A1 has not been found and
the thumb impression found in the document of the year 1950,
not matched with the thumb impression found in the Will or
Power of Attorney and they have not sent the thumb impression
for comparison and also the prosecution has not proved that the
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defacto complainant is the legal heir of the deceased. The
prosecution has not established that the thumb impression
register from these registered thumb impressions allegedly taken
by the expert and Patta has been changed based on the alleged
false documents Exs.P22 and P23. The first respondent did not
sell the property based on Exs.P22 and P23, but sold it under the
possessory rights. Therefore, the charge under Section 420 IPC is
not proved by the prosecution. Mere making representation to
effect patta on the basis of settled possession will not construe
cheating. If at all, PW.1 inherited the property, his remedy is in
a Court of Law to redeem the property. The defacto complainant
misused the police machinery and lodged a complaint without any
basis. Ex.D1 – G.O.Ms.No.942 dated 15.06.1991 reveals that the
Zonal Deputy Tahsildar alone can effect the patta. At any event,
merely on the basis of possessory rights, the act of the Tahsildar
and Surveyor cannot be construed creating false documents for
offences under Sections 467, 468 and 420 IPC against R2 and R3 /
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A2 and A3. The Zonal Deputy Tahsildar had conducted the
original proceedings and recommended for sub-division.
Therefore, the second and third respondents have done their
official duty, which would not construed as an offence of creation
of false documents. The respondents had been acquitted for all
the charges framed against them and Crl.R.Ps. filed by the
defacto complainant are dismissed. Aggrieved over the same, the
defacto complainant has preferred Criminal Revision Cases in
Crl.R.C.Nos.1238 to 1240 of 2000 and the same were dismissed as
withdrawn on 07.11.2012. However, these appeals have been
filed by the appellant herein. Though the trial Court failed to
consider the facts and ingredients of the offence and convicted
them, the appellate Court, as a fact finding Court, re-appreciated
the entire evidence and set aside the judgment of the trial Court
and acquitted the respondents. Therefore, there is no merit in
the appeals and the appeals are liable to be dismissed.
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9. Heard the learned Government Pleader appearing for
the State/Appellant and the learned counsel for the respondents
and also perused the documents available on record.
10. The respondents' counsel relied on the following
citations:-
i) Judgment of Hon'ble Supreme Court in Crl.A.No.2182 of
2010 (Mohinder Singh ..vs.. State of Punjab)
ii) Judgment of Hon'ble Supreme Court in Crl.A.No.1022 of
2011 (Jayaswamy ..vs.. State of Karnataka)
iii) Judgment of Hon'ble Supreme Court in Crl.A.No.382 of
2008 (Bannareddy ..vs.. State of Karnataka)
iv) Judgment of Hon'ble Supreme Court reported in (2018)
2 SCC 278 (Issac @ Kishore ..vs.. Ronald Cheriyan)
v) Judgment of Hon'ble Supreme Court in Crl.A.No.551 of
2011 (Muralidhar @ Gidda ..vs.. State of Karnataka)
vi) Judgment of Hon'ble Supreme Court reported in (2007)
4 SCC 415 (Chandrappa ..vs.. State of Karnataka)
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vii) Judgment of Delhi High Court reported in
Manu/DE/0905/2005 : 121 (2005) DLT 522 (Shashi lata Khanna
..vs.. State of Delhi)
viii) Judgment of Punjab and Haryana High Court in CRR
No.3231 of 2013 (O & M) (Dharan Singh ..vs.. State of Punjab)
ix) Judgment of Hon'ble Supreme Court in Crl.A.Nos.359
and 360 of 2010 (Sheila Sebastian ..vs.. R.Jawaharaj)
x) Judgment of Hon'ble Supreme Court reported in 1994
Supp (3) SCC 436 (V.Sujatha ..vs.. State of Kerala)
xi) Judgment of Hon'ble Supreme Court reported in 1992
Supp (2) SCC 111 (Nand kumar Singh ..vs.. State of Bihar)
xii) Judgment of Hon'ble Supreme Court reported in (1980)
1 SCC 460 (Chatt ram ..vs.. State of Haryana)
xiii) Judgment of Hon'ble Supreme Court reported in (1980)
1 SCC 613 (Arjan Singh ..vs.. Hazara Singh)
xiv) Judgment of Hon'ble Supreme Court reported in AIR
1983 SC 352 (Hasan Ali ..vs.. State of Madhya Pradesh)
xv) Judgment of Oudh Chief Court reported in 1946 SCC
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OnLine Oudh CC 105 : AIR 1947 Oudh 35 (Kishan lal Gupta ..vs..
Emperor)
xvi) Judgment of Hon'ble Supreme Court reported in (1986)
1 SCC 654 (S.Guin ..vs.. Grindlays Bank Ltd.,)
xvii) Judgment of Hon'ble Supreme Court reported in (2017)
12 SCC 699 (Ajay Kumar Ghoshal ..vs.. State of Bihar)
xviii) Judgment of Allahabad High Court reported in 1956
SCC OnLine All 337 : AIR 1956 All 655 (Jaganathan ..vs.. State)
xix) Judgment in Crl.R.C.No.1072 of 1945 dated 08.02.1946
(S.Pichai Pilla, In Re)
xx) Judgment of the Court of Judicial Commissioner,
Vindhya Pradesh reported in 1951 SCC OnLine VP 35 (Mangal
Prasad Bhushan Ram ..vs.. Government)
xxi) Judgment of Hon'ble Supreme Court reported in 2018
SCC OnLine SC 477 (Dilawar ..vs.. State of Haryana)
xxii) Judgment of this Court reported in 1998 SCC OnLine
Mad 204 : 2000 Cri.LJ 1292 (Assistant Collector, Central Excise
..vs. L.Gheverchand Jain)
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xxiii) Judgment of Hon'ble Supreme Court reported in 1980
Supp SCC 180 (Hasan Ahmad Mai Isha ..vs.. State of Gujarat)
xxiv) Judgment of Hon'ble Supreme Court reported in (1996)
10 SCC 79 (Dhanna ..vs.. State of Punjab).
11. The case of prosecution in short is that based on the
complaint by PW.1 – defacto complainant alleging that the first
respondent/A1 in active connivance with the then Tahsildar (A2)
and Sub-Inspector of Survey (A3), had knowingly changed patta
and other revenue records for his forefather's immovable
property, which is a criminal offence, and on appeal, The District
Collector/District Revenue Officer had cancelled the changes
mutated by the accused. Therefore, action was sought against
the accused/respondents.
12. The main contention of the appellant is that the
property is originally belonged to Chockalinga Mudaliar, maternal
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grand father of PW.1. The said Chockalinga Mudaliar died in the
year 1950 and he was survived by his son V.C.Periyasamy Mudaliar
and two daughters Muthulakshmi and Santhayammal and his son
Periyasamy Mudaliar executed a settlement deed dated
24.07.1950 (Ex.P3) in favour of Vinayathammal, second wife of
Chockalinga Mudaliar in respect of the income of the said land
towards maintenance till the death of Vinayathammal. After the
death of Periyasamy Mudaliar and his wife, Periyasamy Mudaliar's
sisters Muthulakshmi and Santhayammal became owners of the
said land. After the death of Muthulakshmi and Santhayammal,
their legal heirs, viz., defacto complainant, his brothers, sisters
and father (legal heirs of Santhayammal) and four sons of
Muthulakshmi became the owners of the said land and they were
in possession and enjoyment of the said land measuring 85 cents.
The patta and all other revenue records stood in their names and
they were paying all the taxes. The first respondent - land
grabber, indulged in malpractices and forged the Will dated
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22.12.1986, registered in the name of Vinayathammal, the second
wife of the defacto complainant's grand father Chockalinga
Mudaliar, forging the thumb impression of the said
Vinayathammal.
13. Though the trial Judge found that the first respondent
forged and created the document and changed patta in his name
and sold the property, but the appellate Court has found that the
legal heir certificate of Chockalinga Mudaliar or Vinayathammal
has not been produced before the Court to prove that the defacto
complainant is the legal heir of the deceased Chockalinga
Mudaliar and Vinayathammal and further, the original thumb
impression Register has not been sent for comparison and the
first respondent obtained the title through enjoyment and
possession and the Power of Attorney is not used for changing of
patta or changing of title. Therefore, in the absence of the
same, the prosecution has failed to establish the case beyond
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doubt.
14. On reading of the records, Vinayathammal had limited
estate only and Vinayathammal had no right to alienate the
property. The first respondent has brought one 60 years old lady
and registered a Power of Attorney in his name. Though RDO has
set aside the order of the Tahsildar and RDO has also cancelled
the patta given in favour of the first respondent, the same has
been restored by the order of the Land Commissioner, Chennai.
The defacto complainant did not challenge the said order of the
Land Commissioner. Even the order of RDO - Ex.P16 clearly
shows that the Power of Attorney and Will have not been used for
changing the patta. Therefore, the Appellate Court finds that
Section 471 of IPC cannot be made out.
15. Though the Power of Attorney and the Will were
marked as Exs.P22 and P23, the evidence of PW.3 shows that he
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had not identified the respondents in Court during his evidence.
He admits that he had signed on the instruction of his employer
and does not know other facts. He had stated that the
respondent had signed in the Power of Attorney, whereas Ex.P23
Power of Attorney does not contain the respondent's signature.
16. The evidence of fingerprint Expert - PW.8 reveals that
the thumb impression on the false documents and the settlement
deed of the year 1950 have not been used for comparison. The
impression in the Sub-Registrar Office Register had been taken for
comparison. The thumb impression marked as Ex.D1 is a common
impression for two documents, viz., the Will dated 22.12.1986
registered as Document No.251 of 1986 and the details of another
document has not been explained by the prosecution, which
creates serious doubt on the samples. The thumb impression
taken as Ex.D2 is taken from the Column of Document No.196
dated 28.01.1987, whereas the Power of Attorney is registered as
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Document No.14/1987. Therefore, from totally different
documents, the thumb impression was taken for comparison.
Those registers have not been produced before the Court as
Exhibits. Therefore, the evidence of PW.8 has not proved the
forgery committed by the respondents.
17. Though the trial Court had believed the evidence of
PW.1 that he is the legal heir of Chockalinga Mudaliar, original
owner of the property, but there is no material on record to
support the contention of the prosecution that Muthulakshmi and
Santhayammal are daughters of Chockalinga Mudaliar. There is
no legal heir ship certificate produced to suggest that who are all
the legal heirs of Chockalinga Mudaliar. Ex.P4 – Geneology table
does not have any authenticity. In the absence of legal heir ship
certificate produced by the defacto complainant proving that he
is the legal heir of the original owner Chockalinga Mudaliar, he
has no locus standi to file the complaint at all. The finding of the
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trial Court is merely on surmises and conjectures. The documents
were not placed before the Court for scrutiny. The trial Court
also has conveniently omitted the recitals in the sale deed Ex.P2,
which clarifies the fact that during the purchase of the property
by Chockalinga Mudaliar, the lessees were in possession of the
property and were cultivating the same. The common thumb
impression for two documents and unnamed impression have been
taken for comparison and the document numbers referred are not
related to either of the false document. Therefore, PW.1 himself
had admitted that the order of RDO has been cancelled and the
patta given in favour of the respondent was affirmed by the order
of the Land Commissioner, Chennai. The defacto complainant
has not challenged the said order. As already stated, the order of
RDO itself shows that the said Power of Attorney and the Will
have not been used for changing the patta. No witness has been
examined to prove the contents of the settlement deed of the
year 1950. During the investigation, the person who registered
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the Will and the Power of Attorney has not been identified ie.,
the author of the forged document has not been identified.
Therefore, the offences under Sections 467, 468 and 471 cannot
be construed against the respondents.
18. The prosecution has not established that the thumb
impression register from these registered thumb impressions
allegedly taken by the expert. The respondent also did not sell
the property based on Exs.P22 and P23, but sold under the
possessory right. Therefore, the charge under Section 420 is also
not proved by the prosecution. Mere making representation to
effect patta on the basis of settled possession will not construe
cheating. If at all PW.1 inherited the property, his remedy is in
the Court of Law to redeem the property. Ingredients of cheating
under Section 420 IPC against the first respondent is not made
out. The Zonal Deputy Tahsildar had conducted the original
proceedings and recommended for sub-division. Therefore, A2
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and A3 have done their official duty, would not construed as
creation of false documents. Though the learned trial Judge
convicted the respondent, the appellate Court, as a final fact
finding Court, reappreciated the entire evidence and found that
the prosecution has not proved its case beyond reasonable doubt
and the benefit of doubt was extended to the respondents and
the appellate Court set aside the judgment of the trial Court. On
reading of the entire evidence and also the judgment of both the
Courts below, once the appellate Court reappreciated the entire
evidence and found that the respondents are not guilty and
acquitted them, it is settled proposition of law that in the appeal
against acquittal, unless this Court finds a compelled
circumstance and perversity in appreciation of evidence by the
appellate Court, normally High Courts will not interfere with the
judgment of acquittal. This Court, while reading the materials
and also the judgments of both the courts below, finds that the
appellate Court has given its own finding for reversing the
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judgment. As already stated unless the compelled circumstance
or perversity finds in the judgment of the appellate Court, the
High Court will not interfere with the judgment of the appellate
Court. The appellate Court also pointed out that the
legalheirship certificate has not been produced to prove that the
defacto complainant is the legal heir of the original owner
Chockalinga Mudaliar and who are all the legal heirs of the said
Chockalinga Mudaliar and further the patta has not been changed
based on the alleged forged documents exchanged but changed
based on the possessory rights and also they have not identified
the person, who is said to have impersonated the document.
Therefore, when two views are possible, the benefit of doubt is
always extended to and in favour of the accused. Therefore, in
this case also, the appellate Court pointed out certain doubts and
once it creates doubts in the minds of the Court, the benefit of
doubt has to be extended to the respondents/accused.
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19. Admittedly, during the first investigation, charge
sheet was closed as “mistake of fact” and subsequently, they
filed second investigation report and the learned Magistrate
failed to consider all the legal as well as factual aspects and
convicted the respondents based on surmises and conjectures,
whereas the appellate Court reappreciated the entire evidence
and found that the prosecution has not established its case
beyond reasonable doubt.
20. Under the above circumstances, there is no sound
ground and reason to interfere with the judgment of the
appellate Court. Therefore, all the above appeals are dismissed.
21. In the result, all the Criminal Appeals stand dismissed
and the acquittal order passed by the learned Principal Sessions
Judge, Erode District at Erode in Criminal Appeals in C.A.Nos.89,
90 and 95 of 2012 and C.A.Nos.100, 101 and 111 of 2012 dated
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21.08.2012 are hereby confirmed. Consequently, connected
Miscellaneous Petitions are closed.
20.12.2019
Speaking / Non-speaking
Index : Yes/No
mra
To
1. The Sessions Judge,
Karaikal.
2. The Inspector of Police
Vigilance and Anti-Corruption
Karaikal.
3. The Public Prosecutor,
High Court, Chennai.
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P.VELMURUGAN, J.
mra Common Judgment in Crl.A.Nos.389, 390, 391, 393, 394 and 395 of 2013 and M.P.Nos.1 of 2014 (3 Nos.) 20.12.2019 39/39 http://www.judis.nic.in