Jammu & Kashmir High Court
Raj Dulari Gupta vs State And Ors. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Rev. No.28/2010
Date of decision:-12.10.2017
Raj Dulari Gupta V. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s) : Mr. Anil Sethi, Advocate
For the respondent(s) : None for respondent No.1.
M/s S. S. Ahmed & Rahul Raina, Advocate for respondent Nos.2 to 5.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. This Criminal Revision is directed against order dated 12.03.2010 passed by learned Additional Sessions Judge, Doda, in File No.24/Challan, whereby respondent Nos.2 to 5 stands discharged from offences under Sections 467, 468, 420, 109 RPC.
2. Facts giving rise to filing of instant petition are that complainant in the case is sister of one Kanta Devi and allegations of the complainant against the accused persons as mentioned in FIR are that Kanta Devi during her life time, out of saving from her emoluments as Teacher, had kept some amount in FDR and saving accounts in various banks; that after her death when complainant along with other heirs were busy in performing her last rites, the accused persons 2 & 3 on instigation and abetment of other accused persons with criminal intention trespassed the house of deceased and stole Cr. Rev. No.28/2010 Page 1 of 8 away an Attaché in which she had kept FDRs and other saving receipts along with some ornaments so that they would withdraw the amount by cheating and consequently they entered the name of Shibum Sharma and Satyam Sharma in the FDRs falsely and also forged an antedated Will in the name of deceased to grab the property of complainant and other legal heirs which has been mutated in their name.
After taking cognizance of the FIR, police investigated the case and concluded that offences under Sections 452, 454, 380 RPC as mentioned in FIR are not proved as respondent Nos.2 & 3 were already in possession of the said premises. But police held the offences under Sections 467, 468, 420 RPC proved against respondent Nos.2 & 3 and offences under Sections 420, 467, 468, 109 RPC against other accused persons.
3. Learned counsel for the petitioner has stated that in order to ascertain the factum of forgery it was incumbent for the police to have compared the admitted signatures of deceased Kanta Devi with the signatures on the FDRs etc. It appears to have misdirected itself and merely felt content with comparing the signatures on Will with those on the FDR. It further went on to conclude that neither the original FDRs nor the original Will were sent to original examiner for comparison. This was the basic flaw in the investigation conducted by the police which has been noticed by the trial Court. That despite noticing the aforesaid flaw in the investigation, the trial Court has instead of exercising jurisdiction vested in it under Section 268, 269 Cr.P.C. properly and legally, discharged respondent Nos.2 to 5. The trial Court has committed a glaring illegality and irregularity while doing so since the investigation conducted by the police was a faulty one and it was obligatory for the Magistrate to have directed re-investigation of the case.
4. Learned counsel for the petitioner has prayed that the instant petition be allowed and order impugned be quashed.
Cr. Rev. No.28/2010 Page 2 of 85. Per contra, learned counsel appearing on behalf of private respondents has supported the order passed by the Court below and prayed that the instant petition be dismissed out rightly.
6. Heard learned counsel for both sides, gone through the record and considered the law on the subject.
7. From the perusal of challan, it is evident that complainant Raj Dulari, sister of Kanta Devi, lodged written before the court of CMJ, Doda on 27.11.2007 against the accused person. In the compliant it has been written that Kanta Devi during her life time out of saving of her emoluments as teacher has kept some amount in fixed deposit and saving accounts in various banks detailed of which is mentioned in the FIR. That after her death when complainant along with other heirs were busy in performing her last rites, the accused person Munshi Ram and Amrika Devi on the instigation and abetment of other accused persons with criminal intention trespass the house of the deceased and stolen the attaché in which FDRs and other saving receipts along with ornaments were kept. That their intention was to withdraw amount and consequently accused entered the name of Shibam Sharma and Satyam Sharma in the FDRs falsely and for also forged antedated bill in the name of deceased to grab the property of the complainant and other legal heirs.
This complaint was referred to Police Station, Doda for investigation under Section 156(3) CrPC. Police conducted the investigation and after completion of investigation found proved offence under Sections 467, 468, 420 RPC proved against accused Nos. 1 and 2 and offence under Section 467, 468, 420 and 109 RPC. The challan was accordingly produced before court of Additional Sessions Judge, Doda. On 12.3.2010 , court dismissed the challan as no case for framing of charges was made out against the accused persons.
8. The relevant findings in the order of court below reads as under:-
Cr. Rev. No.28/2010 Page 3 of 8"Offences under sections 467/468 RPC are forgery of valuable security, Will etc. and forgery for the purpose of cheating respectively. In this case from the perusal of file, it is revealed that the conclusion of the police is based on the plea that the Will is forged by the accused persons, but there is not even an iota of evidence collected by the investigating agency either direct or circumstantial to establish that it were the accused persons only who prepared the said Will and put signatures of Kanta Devi deceased. Forgery is defined under Section 463 and as per definition itself, a person is said to have committed forgery who makes any false document or part of a document. The offences under Sections 467, 468 RPC are only aggravated forms of forgery and unless the basic ingredients of forgery as envisaged under Section 463/464 RPC i.e. making of false document are not proved, the offences under above sections cannot be held to be made out. A forgery can be proved by direct evidence i.e. the evidence of those persons who saw the accused preparing and signing the document. Similarly, the forgery can also be established by circumstantial evidence and one of the most recognized modes is the comparison of writing and signatures on the document as Will in the case in hand with admitted signatures of accused persons. However, in this case, it is strange that neither there is direct evidence of witnesses in whose presence the accused made and signed the Will nor the police adopted the course of comparing the writing and signatures of accused persons with the writing and signatures on the Will. The police rather adopted a noble procedure unknown to law and instead of comparing the writing and signatures on Will with admitted signatures of the accused, they got compared the signatures of deceased on FDRs with the signatures on Will and on the basis of report of Forensic Expert concluded that the Will is forged as the signatures on the same are not of the person who signed the FDRs. Police treated the signatures on FDRs as admitted signatures of deceased Kanta Devi and signatures on Will as questioned signatures. It is also to be noted that neither original FDRs nor original Will was sent to Chemical examiner for comparison of signatures but even if it is assumed that it makes no difference, it can be held at the most that Will is forged.
Keeping a forged document even with the knowledge that it is forged in one's possession itself does not constitute any offence unless it is proved that it was forged by him or used. However, in the present case, even it has not been shown as Cr. Rev. No.28/2010 Page 4 of 8 to from where the copy of Will which was sent for chemical examination was procured by the investigating agency. There is no seizure on the file to form any opinion to this effect. Otherwise also, assuming for the sake of argument, that it was seized from the possession of accused persons, no offence is constituted in the absence of evidence that the same was ever used by the accused knowingly that it is forged. Learned trial Court has further observed that once the investigating agency has failed to establish though prima facie forgery of Will or use and production of the same, the question of cheating in pursuant to such Will does not arise. The offence under Section 420 RPC is also therefore not disclosed from the material on record. Trial Court discharged the accused of the offences under Sections 467, 468, 420, 109 RPC."
9. I have given my thoughtful consideration to whole aspects of the matter.
10. The challan has been produced u/s 420, 467, 468, R.P.C. for preparing a forged ante dated WILL deed dated 15.2.2005 of late Kanta Devi in favour of Ambika Devi in order to grab the properties of Kanta Devi and also entering the names of Shibum Sharma and Satyan Sharma in FDRs of deceased.
11. Forgery is defined under Section 463 RPC, it reads:-
"463. Forgery.
Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
12. Making of false document is defined in Section 464 of RPC, it reads:-
"Sec. 464. Making a false document.
[A person is said to make a false document or false electronic record- First- who dishonestly or fraudulently- makes, signs seals or executes a document or a part of a document; makes or transmits any electronic record or a part of any electronic record;affixes any digital signature on any electronic record; makes any mark denoting the execution a document or the authenticity of the digital signature; with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signal, sealed, executed, transmitted or affixed by or by the authority Cr. Rev. No.28/2010 Page 5 of 8 of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on an electronic record, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration]."
13. As per sections 463/464 RPC, the person who is charged with offence of forgery has to make sign, seal and to execute a document, which he knows that it is false. To attract section 468, there has to be alteration of document dishonestly and fraudulently.
14. In order to appreciate the contentions of the parties, it may be noticed that Section 268 and 269 of Cr.P.C. relate to the trial of cases before the courts of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote sections 268 and 269 of Cr.P.C. which read as under: -
"268 Discharges:
If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.
269 Framing of charge (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on police report,
b) Is exclusively triable by the Court , he shall frame in writing a Cr. Rev. No.28/2010 Page 6 of 8 charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
15. A conjoint reading of section 268 and 269 of Cr.P.C. would reveal that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused.
16. In present case, the trial court was right in concluding that there is no seizure of original alleged forged WILL; that said Will even if it is possessed by accused, there is no evidence that it was used.
17. In forgery and allied offences, in order to prove culpability of accused, the specimens signatures/writings or proved signatures/writings of alleged person/s whose signatures/writings have been allegedly forged and specimens signatures of accused person/s are to be obtained by following procedure established under law by I/O during investigation and then these have to be sent to FSL along with alleged forged document/s for comparison.
18. In present case, it has not been done. Police got compared the signatures of deceased on FDRs with the signatures on Will and on the basis of report of Forensic Expert concluded that the Will is forged as the signatures on the same are not of the person who signed the FDRs. Court below has categorically held that neither original FDRs nor original Will was sent to Chemical examiner for comparison of signatures. Even assuming that some circumstances throw some suspicion on the genuineness of the WILL that will not take the place of proof in order to frame criminal charge. These matters may weigh with the Civil Court in deciding upon the validity or genuineness of a WILL.
Cr. Rev. No.28/2010 Page 7 of 819. In this way, even if all the evidence collected during investigation is taken as it is, without cross examination, no case of conviction is made out then court has to discharge the accused.
20. In 1996 (3) Crimes 85 (SC), in case titled Satish Mehra Vs. Delhi Administration and another, it is held as under:-
"13. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings...."
21. In view of above, I do not find any illegality in order of court below, which is upheld accordingly. This revision petition is dismissed. Record be sent back.
(Sanjay Kumar Gupta) Judge Jammu 12.10.2017 Narinder Cr. Rev. No.28/2010 Page 8 of 8