Punjab-Haryana High Court
Naresh Bala vs State Of Haryana And Another on 15 May, 2013
Author: K.C. Puri
Bench: K.C.Puri
Criminal Revision No.349 of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Revision No.349 of 2005
Date of decision : 15.05.2013.
Naresh Bala
................ Petitioner
versus
State of Haryana and another
................. Respondent
CORAM :- HON'BLE MR. JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present: Mr. B.S.Bedi, Advocate for the petitioner.
Ms. Shruti Jain, AAG, Haryana
K.C. PURI, J.
1. The present revision petition has been directed by the petitioner against the judgment dated 11.02.2005 vide which the appeal preferred by the accused against the judgment and order dated 5.5.2003 passed by Shri Sanjeev Arya, Judicial Magistrate Ist Class, Kurukshetra vide which the accused-petitioner had been convicted under Sections 420, 465, 467 and 471 of the Indian Penal Code ( in short - the IPC ) and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- under Section 420 IPC and to undergo further rigorous imprisonment for a period of nine months and to pay a fine of Rs.500/- for offence under Section 465 of the IPC. She was further sentenced to undergo rigorous imprisonment for Criminal Revision No.349 of 2005 2 a period of two years and to pay a fine of Rs.2000/- for the commission of offence punishable under Section 467 of the IPC and to undergo rigorous imprisonment for a period of one and half years and to pay a fine of Rs.1000/- under Section 471 of the IPC. In default of payment of fine, the convict shall further undergo imprisonment for a period of three months. However, all the sentences were ordered to run concurrently.
2. Briefly stated the facts of the case are that Smt. Chawli daughter of Smt.Kartari, resident of village Mathana, Tehsil Thanesar, District Kurukshetra was the absolute owner in possession of agricultural land comprised in khewat No.326, khatoni no. 663, khasra no. 1468/2, 4041, 4042, 4043, 4048, 4049, 4051, 4052, 4053, 4054, khewat no, 388, khatoni no. 739, khasra no. 4030, 4033, 4034, 4035, 4036, 4039 and 4040 measuring 57 bighas 2 biswas situated at village Mathana, Tehsil Thanesar District Kurukshetra as per jamabandi for the year 1984-85 till 10.01.1978, the day when she died. After her death, Ram Sarup complainant, Sita Ram, Suraj Bhan, Smt. Radhi, Smt. Vidya and Smt. Kala being her legal heirs became owners in possession of the said land and mutation of inheritance bearing No.1763 in respect of the land was sanctioned in their names on 14.9.1989. Smt. Kartari widow of Nathu Ram and mother of Smt.Chawli died on 31.8.1989 and she had no moveable or immovable property in her name within the revenue estate of village Mathana from 03.02.1989 till her death. Accused hatched a criminal conspiracy and forged copy of jamabandi for the year 1984-85 in respect of the land left by Smt.Chawli by showing Smt.Kartari Devi as owner to the extent of ½ share in the land and Criminal Revision No.349 of 2005 3 on the basis of said forged jamabandi a civil suit no. 131 of 1989 titled Naresh Bala vs. Smt. Kartari was filed in the court of Mr. M. L. Sharma, the then learned Senior Sub Judge, Kurukshetra in which appellant Naresh Bala was the plaintiff. Shri Shiv Ram Kailley, Advocate was the counsel for the appellant Naresh Bala and Shri Ranjit Singh, Advocate was the counsel for Smt. Kartari whereas Harbans Singh as the halqa patwari of village Mathana who prepared the copy of jamabandi of the land for the year 1984- 85 and Tirath Ram was shown as the husband of appellant Naresh Bala. It has been claimed that they all fraudulently and dishonestly used the aforesaid forged copy of jamabandi as genuine document knowing the same to be forged and got the alleged share of Smt. Kartari Devi transferred in the name of appellant Naresh Bala vide judgment and decree dated 9.3.1989 passed in civil suit no. 131 of 1989. Appellant Naresh Bala and Triath Ram are now relying upon the forged and fraudulent judgment and decree dated 9.3.1989 in an appeal titled as Tirath Ram vs. Ram Sarup etc. against the mutation of inheritance bearing no. 1763, which is sanctioned in the name of complainant Ram Sarup and others. It has been averred that the accused persons have committed the offence punishable under Sections 465/466/467/468/471/420 read with section 120-B, IPC.
3. On the aforesaid allegations, the complaint was presented in the Court of Sh.J.B.Sharma the then learned Addl. Chief Judicial Magistrate, Kurukshetra which was forwarded to SHO Police Station Sadar Thanesar on 12.12.1989 to investigate the case under Section 156 (3) Cr.P.C. The complaint was investigated and formal FIR No. 229 dated 17.12.1989 under Criminal Revision No.349 of 2005 4 Section 420/465/466/467/468/471 read with Section 120-B IPC was recorded at police Station Thansear and after completion of investigation, the challan was presented in the court and the accused Tirath Ram and Naresh Bala were charge sheeted under section 420/465/466/467/471 read with Section 120-B IPC. Both the accused pleaded not guilty and claimed trial. The prosecution examined eight witnesses and also produced documentary evidence.
4. The statement of accused under Sections 313 Cr.P.C were recorded and defence also produced its documentary evidence. In nutshell, the complete trial was held. During the course of arguments, it was contended by the defence that the police could not investigate the offence in view of bar of section 195 (1) (b) Cr.P.C and no cognizance can be taken except on the complaint made by the Court. Vide judgment dated 22.1.2000 the court accepted the contention of the defence and it was held that the court where the offence was allegedly committed should have made the complaint. Since the offence was allegedly committed in the court of Sh. M.L.Sharma, the then learned Senior Sub Judge and the final judgment was being pronounced by the successor court of Sh.M.L.Sharma, forwarded the complaint under Sections 420/465/467/471 read with Section 120-B IPC against both the accused facing trial to the court of learned Chief Judicial Magistrate, Kurukshetra who assigned the same to the court of Shri Praveen Gupta, the then learned Judicial Magistrate Ist Class, Kurukshetra vide order dated 5.2.2000.
5. The prosecution in order to prove its case examined Hari Criminal Revision No.349 of 2005 5 Chand,. Retired Naib Tehsildar as PW1, Krishan Lal Kanungo as PW2, Ram Niwas, Clerk as PW3, Sh.M.L.Sharma, Additional Sessions Judge, Bhiwani as PW4,. Shri Shiv Ram Kailley, Advocate as PW5, Shri Lalit Batra, Civil Judge (Senior Division), Kurukshetra as PW6. Thereafter, the prosecution evidence was closed by court order on 27.9.2000. The statements of the accused under Section 313 Cr.P.C were recorded on 4.10.2000 and the case was fixed for defence evidence. At that stage, it was noticed that the charge on the basis of complaint dated 22.1.2000 has not been framed against the accused and subsequently, the charge for the commission of offences punishable under Section 420/465/467/471 read with section 120-B IPC was framed against both the accused to which they pleaded not guilty and claimed trial. Thereafter, the accused made a joint statement to the effect that they do not want to further cross examine the witnesses who were examined in pre charge evidence. Thereafter statements of the accused were recorded under Section 313 Cr.P.C and the defence evidence was closed by the accused on 30.4.2003.
6. After hearing learned Public Prosecutor for the State and also learned counsel for defence and going through the material on the file, the learned Judicial Magistrate Ist Class, Kurukshetra passed the impugned judgment of conviction and order of sentence, as already mentioned above.
7. Feeling aggrieved the accused have preferred the appeal before the Appellate Court and the learned Additional Sessions Judge, Kurukshetra vide judgment dated 11.2.2005 dismissed the appeal.
Criminal Revision No.349 of 2005 6
8. Still feeling dissatisfied with the judgment dated 11.2.2005 passed by Additional Sessions Judge, Kurukshetra and judgment and order dated 5.5.2003 passed by Judicial Magistrate Ist Class, Kurukshetra, the petition has preferred the present revision petition.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
10. Learned counsel for the petitioner has submitted that according to the prosecution forged jamabandi was produced before the Court for obtaining a collusive decree against Kartari Devi. It is submitted that said forged jamabandi has not been produced in the Court. So, in these circumstances, the conviction recorded by both the Courts below is bad in the eyes of law.
11. I have carefully considered the said submission, but do not find any force in that submission. The case of the prosecution is that in the earlier collusive decree case Chawli Devi has been recorded as owner. Said Chawli Devi is the daughter of Kartari Devi. The word 'Sambhag' has been added to make the share of Kartari Devi in the land in dispute. In the correct jamabandi for the year 1984-85 which has been produced on the file as Exhibit P-E, name of Chawli Devi as owner has been mentioned. However, in the photostat copy which is placed on the record, Smt. Chawli Devi d/o Smt. Katari Devi is mentioned and word 'Sambhag' has been mentioned to show Kartari Devi as owner. Kartari Devi could have passed a decree in favour of the petitioner only in case she would have been recorded as owner of the property. It so seems that litigation was pending with the complainant Criminal Revision No.349 of 2005 7 and in order to put pressure upon the complainant, the word 'Sambhag' has been mentioned showing Kartari Devi owner to the extent of one half and decree has been obtained from Kartari Devi on the basis of consent.
12. Learned counsel for the petitioner has further submitted that Tirath Ram has also been arrayed as an accused in respect of offence under Section 120-B IPC. Said Tirath Ram has been acquitted and that order has not been challenged by the complainant. The petitioner is liable to be acquitted as conspiracy has not been proved with Tirath Ram.
13. I have considered the said submission, but do not find any force in that submission. In a criminal case, the accused can be convicted only if there is clear cut evidence to prove the ingredients of offence for which the accused has been charged. Tirath Ram admittedly, is not the beneficiary of the decree. The beneficiary of the decree is only the present petitioner. The prosecution has failed to prove the conspiracy at the hands of Tirath Ram and as such he has been acquitted. His acquittal does not affect the case of the prosecution.
14. Learned counsel for the petitioner has further submitted that finding of both the Courts below is that legal hiers of Chawli Devi have been cheated. Tirath Ram is the son of said Chawli Devi and petitioner is the wife of said Tirath Ram. Tirath Ram has not claimed anywhere that he has been cheated by the petitioner, rather Tirath Ram has himself been arrayed as accused and he has been acquitted. The complainant of the present case has no locus standi to file the present case. The real facts are that the complainant has filed suit for declaration challenging the sale deed executed Criminal Revision No.349 of 2005 8 by Kartari Devi in favour of Chawli Devi and that suit was decreed. However, later on Kartari Devi became full owner on account of Section 14 of the Indian Succession Act, as she acquired the limited right in full fledge ownership on account of the said provision of law. It is further contended that complainant has lost litigation upto the Supreme Court. So, in these circumstances, no case is made out for conviction of the petitioner.
15. I have considered the said submission. No doubt, the complainant has lost the litigation in respect of the property in question upto the Supreme Court. It is also true that complainant is not the sufferer from the decree but by producing the forged jamabandi of the year 1984-85, in the earlier consent decree, the beneficiary of which is the petitioner, she has committed the offence. However, the said fact that complainant has not suffered in any way can be considered while granting the quantum of sentence.
16. Learned counsel for the petitioner has submitted that mere production of the photostat copy is not sufficient to convict the accused for offence of forgery without production of original and has relied upon authority reported as Smt. Suvinder Kaur @ Shavinder Kaur vs. State of Haryana 2003 (2) RCR (Criminal) 815.
17. I have considered the said submission, but do not find any force in that submission. In this case, the original jamabandi has been produced as Exhibit P-E. The photostat copy produced in the earlier civil suit was a photocopy made by adding the word 'Sambhag'. So, the abovesaid authority is distinguishable to the facts of the present case.
18. The authority reported as Manohar Lal vs. Ram Chander Criminal Revision No.349 of 2005 9 2003(3) RCR (Criminal) 786, relied upon by counsel for the petitioner is distinguishable as in that case the allegations were that thumb impressions were taken after giving intoxication and civil suit regarding recovery was decreed.
19. The authority reported as Balwant Singh and another vs. Daulat Singh (Dead) By LRs and others 1997 (2) PLJ 132, relied upon by counsel for the petitioner is not helpful to him, as in that case it has been held that mutation does not confer any right. There is no such dispute in the present case.
20. The authority reported as Iqbal Singh Marwah and another vs. Meenakshi Marwah and another 2005 (2) RCR (Criminal) 178, relied upon by counsel for the petitioner, five Judges Bench of the Hon'ble Apex Court, lays down the law that if the document is forged outside the Court, in that case, the complainant has the right to file the complaint. However, in the present case, the petitioner herself has taken the objection that original complainant has no locus standi and the complaint should have been filed by the Court. Her objection was upheld and the Court has filed the present complaint, which forms the basis of conviction. It has been further laid down in the said ruling that before filing the complaint, the Court should hold an enquiry. There is no dispute to that preposition of law. In the present case, the original complainant has lead whole of the evidence. So, there was sufficient material on the file with the Court to file the complainant under Section 340 Cr.P.C. So, the petitioner cannot have benefit of the said authority. The authority reported as B.K. Gupta vs. Damodar H. Bajaj Criminal Revision No.349 of 2005 10 and others 2002 Supreme Court Cases (Cri) 1103, relied upon by the counsel for the petitioner, is also distinguishable on the same ground.
21. The authority reported as Sachida Nand Singh vs. State of Bihar 1998 (1) RCR (Criminal) 823, relied upon by counsel for the petitioner, also lays down the law that in case the forgery in respect of document was made in the custody of the Court, only then the Court is required to make enquiry and make complaint. However, as discussed above, that aspect is already over as complaint has already been filed by the Court. However, it is made clear that there is no bar on the Court to file complaint even if the document has been forged outside the Court.
22. In authority reported as Onkar Chand vs. State (U.T. of Chandigarh) and others 2008 (4) RCR (Criminal) 265, relied upon by counsel for the petitioner, this Court held that it is not in every case that complaint is required to be filed on merely commission of offence but the Court has also to record a finding that Court is of the opinion that it is expedient in the interest of justice to proceed with the matter. In the present case at the objection of the petitioner, Court has proceeded after passing a detailed order. That order has not been challenged before any competent authority. So, the petitioner cannot have the benefit of said authority.
23. The authority reported as BSES Rajdhani Power Ltd. vs. Shiv Lal 2009 (5) RCR (Criminal) 398, relied upon by counsel for the petitioner is distinguishable, as in that case the Court came to the conclusion that affidavit has been filed due to bona fide mistake.
24. In authority reported as Sheela Devi vs. State of Punjab 1979 Criminal Revision No.349 of 2005 11 CLR (Pb & Har) 195, relied upon by counsel for the petitioner, it has been held that in case the forgery has been committed in respect of document in the Court, in that case, the complainant can be Court itself in view of Section 195 Cr.P.C. There is no dispute to the said preposition of law, but much water has flown in the present case as discussed above.
25. Counsel for the petitioner has further submitted that as per the conviction slip, the petitioner has undergone incarnation for a period of 21 days, out of the substantive sentence of one year. Tirath Ram husband of the petitioner is the owner of the property regarding which the decree has been passed. Said Tirath Ram has not challenged the decree in favour of the petitioner. She is an old lady. The complainant have lost the civil litigation regarding the property upto the Supreme Court. The complainant is facing trial since 1989. So, it is submitted that in case the Court is not inclined to accept the prayer for acquittal, in that case, prayer has been made for taking a lenient view regarding quantum of sentence.
26. I have considered the said submission. The petitioner is facing trial since 1989 i.e. for the last more than 23 years. The original complainant lost the litigation upto the Hon'ble Apex Court. The accused during the pendency of the case raised an objection that original complainant has no locus standi to file the complaint as the document has been produced in the Court. Learned Judicial Magistrate Ist Class accepting the plea of the complainant, the Court on its own motion, became the complainant. Chawli Devi is the mother-in-law of the petitioner and in the legal course also, the property of Chawli Devi has to be inherited by Tirath Ram husband of the Criminal Revision No.349 of 2005 12 accused. Tirath Ram has not challenged the decree but he has been arrayed as an accused, although he has been acquitted. The petitioner has undergone incarnation for a period of 21 days out of the substantive sentence of one year.
27. So, considering all the circumstances, mentioned above, the sentence of the petitioner stands reduced to the period already undergone. However, the sentence of fine stands maintained.
28. A copy of the judgment be sent to the trial Court for strict compliance.
( K.C. Puri )
May 15, 2013 Judge
sv/chugh