Delhi District Court
State vs Mohan Singh on 6 July, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL); DELHI
Crl. Appeal No.43/10
In the matter of:
State .......Appellant
Versus
Mohan Singh,
S/o Sh. Balwant Singh,
R/o A28, Amar Colony,
Lajpat Nagar,
New Delhi. .......Respondent
Date of institution:07.10.2010
Date of Judgment:06.07.2012
J U D G M E N T
This judgment is to dispose of Criminal Appeal No.43/10 filed by the State - appellant herein challenging judgment dt.14.07.09 passed by learned Chief Metropolitan Magistrate, Delhi, thereby acquitting Mohan Singh - respondent herein of the charge for offences U/s 193, 466 and 471 IPC.
2. Mohan Singh - respondent herein was facing trial before learned Chief Metropolitan Magistrate, Delhi, on the allegation of having committed offences U/s 193, 466 and 471 IPC. Allegations were levelled against him in the complaint filed by the Registrar, Hon'ble Supreme Court of India in view of directions contained in judgment dated 01.09.1998 passed in Civil Appeal No. Crl. Appeal No. 43/10 1 14918 of 1996.
Facts in brief
3. It is case of the prosecution that an application U/s 21 of Delhi Rent Control Act was filed by the landlordSh. Amar Singh Sadana on 29.06.81. Mohan Singh, accusedrespondent herein was a party to the petition. Prayer in the application was for grant of permission for creation of tenancy for limited period of 2 years in favour of respondent - Mohan Singh in respect of single storey building no.E222, East of Kailash, New Delhi.
The application came to be assigned to Addl. Rent Controller for 30.06.81. In the proceedings dated 30.6.1981 statements of petitioner - applicant and Mohan Singh - respondent came to be recorded before Addl. Rent Controller. Prayer for creation of tenancy for limited period was made even in the statements of the parties recorded on 30.06.81.
When the tenantrespondent herein did not vacate the premises on expiry of period of limited tenancy, the landlord filed execution application. Warrant of possession was issued. Thereupon, the tenantrespondent filed objections. The objections were opposed by filing reply. The tenant filed rejoinder to the objections. Objections were allowed. Landlord filed appeal before Rent Control Tribunal. Appeal was allowed. Tenant filed revision petition before Hon'ble High Court but it came to be dismissed. It led to filing of SLP by the tenant before Hon'ble Apex Court.
In the SLP, the tenant pleaded that on 30.6.1981 when the applicant under Section 21 of D.R.C.Act was taken up before Addl.Rent Controller, he was not Crl. Appeal No. 43/10 2 present in Court, he having left the country on the night intervenng 29/30.6.1981 for Germany. The landlord filed counter affidavit denying this plea put forth by the tenant and testifying that he had made several false and misleading averments in the petition including that he was not present in India on 30.6.1981 and did not appear before the Addl.Rent Controller. As such, landlord filed application for revocation of special leave which was granted.
Before the Hon'ble Apex Court, the landlord filed another affidavit to the effect that copy of rejoinder filed by the tenant and annexed to the Special Leave Petition and found in the paper book (pages 67 to 73) was not a correct copy, the same having been deliberately tampered with. At that time, on behalf of the landlord alongwith the affidavit, copy of rejoinder said to have been served on the counsel for the landlord before the Addl.Rent Controller was filed as Annexure R1. It was further stated in the affidavit on behalf of the landlord that one document had been interpolated as page "79 A" in the record of Rent Control Tribunal whereas during the proceedings it was never produced.
Opportunity was given by the Hon'ble Apex Court to the tenant to file detailed affidavit in reply to the allegations levelled on behalf of the landlord.
While disposing of the matter, Hon'ble Apex Court held that the rejoinder filed by the tenant before the ARC had been tampered at a later point of time, in all probability, when the matter was pending before the Appellate Tribunal in order to support a new plea raised for the first time by him.
As regards introduction of page 79A lateron, Hon'ble Apex Court also observed that in absence of any explanation for the number "79A" found on the Crl. Appeal No. 43/10 3 said page of the record of the Tribunal, an inference could be drawn that the same was interpolated in the records of the Tribunal at a later point of time and was not filed alongwith the application for additional evidence.
Hon'ble Apex Court further drew an inference that the visa alleged to have been issued by the German Embassy on 26.6.81 to the tenant and the Immigration Stamp found thereon were not genuine.
Ultimately, Hon'ble Apex Court considered it appropriate to direct the Registrar to file a complaint before the appropriate Court and set the criminal law in motion against the tenantMohan Singhrespondent herein.
That is how, complaint Ex.PW8/A came to be filed before the chief Metropolitan Magistrate, Delhi.
Charge
4. The accusation of charge levelled against the accused reads as under : "That on or about 29.10.96 you intentionally filed a false affidavit in support of S.L.P. No.22092/96 (Civil Appeal NO.14918096) in Hon'ble Supreme Court of India containing false statement of facts and thereby committed an offence punishable U/s 193 IPC within my cognizance.
Secondly that on 11.10.85 you caused tampering / interpolations in rejoinder filed in the court of Addl. Rent Controller with intention to cause damage to the opposite party in proceedings involving you in the said court, to support your claim on the suit property with the intention to commit fraud and thereby committed the offence of forgery in the records of the said court punishable U/s 466 IPC within my cognizance.
Thirdly, during the pendency of the proceedings arising out of the case aforesaid, you tampered with / interpolated judicial record of Case no.749/94 of the court of Rent Control Tribunal by implanting forged passport/visa at page no.79A with intention to cause damage to Crl. Appeal No. 43/10 4 the aforesaid opposite party to support your aforesaid claim with the intention to commit fraud and thereby committed offence of forgery of the record of the court punishable U/s 466 IPC within my cognizance.
Fourthly, that during the pendency of the aforesaid proceedings you used the aforesaid forged documents fraudulently and dishonestly as genuine i.e. the rejoinder dt.11.10.85 and Passport / Visa at page no. 79A on the original file of case no.749/94 of the Court of Rent Control Tribunal and thereby committed offence of forgery of the record of the court punishable U/s 471 IPC within my cognizance."
Accused pleaded not guilty the charge and claimed trial. Prosecution Evidence
5. In order to prove the accusations levelled against the respondent, prosecution examined following witnesses : PW1 Sh. B.S. Narang Advocate, counsel for landlord in execution application before Addl. Rent Controller PW2 Sh. B.B. Chaudhary, Addl. District & Sessions Judge, Delhi, the then Addl. Rent Controller, Delhi PW3 Sh. Kuldip Singh Addl. Rent Controller, Delhi.
PW4 Sh. Harbhajan Singh Reader in the court of Rent Control Tribunal, Delhi. PW5 Ms. Indu Bala The then Assistant Ahlmad with Rent Control Tribunal, Delhi.
PW6 Sh. R.S. Endlaw Counsel for landlord Amar Singh, appellant in appeal filed before Rent Control Tribunal, Delhi.
PW7 Sh. R.C. Jain Presiding Officer of Rent Control Tribunal, Delhi. PW8 Sh. L.C. Bhadoo, Registrar General ( Supreme Court of India) Complainant complainant.
PW9 Sh.Tejbir Singh Grand son of Amar Singh, landlord
PW10 Sh. D.N. Srivastava Director/Deputy Chief of Protocol (P), Ministry of
External Affairs, New Delhi.
Crl. Appeal No. 43/10 5
Statement of accused
6. When examined under Section 313 CrPC, accused denied having filed petition U/s 21 of Delhi Rent Control Act on 30.06.81 or to have signed any statement before Additional Rent Controller in the said petition on that date. He also denied to have engaged any counsel or executed any Vakalatnama in favour of any person in respect of petition U/s 21 of Delhi Rent Control Act or to have signed any statement. He further pleaded that in case any proceedings took place in any such petition, the same took place in his absence.
However, he admitted to have filed objections to the execution application filed by Amar Singh for recovery of possession on expiry of a limited period of three years of tenancy.
Defence plea put forth by the accused reads as under : I am innocent and falsely implicated in the case on the basis of wrong and incorrect information given by my landlord.
I have not tampered or interpolated any court record at any point of time being a law abiding and educated person and worldly travelled in connection of my business. As a matter of fact during the pendency of litigation I briefed my counsel regarding the actual and... facts and the plea of my not being present before the court of Sh. Kuldeep Singh on 30.06.81 was taken by me in the rejoinder on 09.11.85 and the copy of the same was given to the opposite counsel and same was duly signed by me. I am innocent."
As noticed above, the Trial Court acquitted the accused of all the accusations levelled against him. Hence this appeal by the State.
As regards charge of perjury
7. In this regard, while referring to the testimony of PW2 Sh. Kuldeep Singh, learned Addl. Rent Controller and the testimony of PW9 Tejbir Singh, Trial Crl. Appeal No. 43/10 6 Court has held that prosecution failed to establish presence of PW9 Tejbir Singh before learned Addl. Rent Controller and that the plea taken by the accused that he was not present before the court of learned Addl. Rent Controller on 30.06.81 had not been proved to be a false plea by the prosecution.
In this regard, Trial Court has observed as under : "From the evidence of PW3 and PW9, it thus emerges that plea taken by the accused that he was not present before the court of learned Addl. Rent Controller, Delhi on 30.06.81 has not been proved to be a false plea by the prosecution.
PW3 has failed to state that it is the accused who was present in his court on 30.06.81 or that he signed the statement before him on the said date.
Parties to the proceedings under Sec.21 DRC Act were identified by learned counsel who represented the landlord. Admittedly, no Counsel was present on behalf of accused/tenant.
The accused has denied his signatures on the statement Ex.PW3/C. The prosecution has not produced any witness on record in order to prove that the signatures on the order sheet dt.30.06.81 are those of the accused nor is there any opinion of any handwriting expert on record to this effect.
In the light of the aforesaid, I am of the considered opinion that the prosecution has failed to prove that accused has deposed falsely by way of affidavit and that he was not present before learned Addl. Rent Controller, Delhi on 30.06.81 as alleged."
The Trial Court further observed that prosecution failed to establish that accused - respondent herein filed the false affidavit before Hon'ble Supreme Court that he was not present before learned Addl. Rent Controller on 030.06.81, the reason being that the best evidence in the form of record regarding travel of the accused - respondent to Germany on 30.06.81 had not been summoned. Crl. Appeal No. 43/10 7
Charge for offence U/s 466 IPC
8. As regards this head of the charge, the Trial Court, while dealing with the statements of PW1, 2 & 6 held that prosecution failed to establish that there was any tampering / interpolation in the rejoinder filed by the accused / tenant - respondent herein on 11.10.85 in execution petition No.74/84 which was pending before learned Addl. Rent Controller or there was any difference in the rejoinder and in the copy thereof supplied to the landlord.
Other charge for the offence u/s 466 IPC
9. As regards the allegation of the accused having introduced in the records of learned Rent Control Tribunal on a later date, one document available at page no.79A i.e. in between paged 77 & 79, the Trial Court has observed that simply from the statement of PW10 D.M. Srivastava, Director / Deputy Chief on Protocol, Ministry of External Affairs, it could not be concluded that Germany visa on the copy of the passport of the accused - respondent herein was forged or that the document available at page 79A was interpolated / inserted in the records of Rent Control Tribunal.
In view of the aforesaid findings, the Trial Court ordered for acquittal of the accused - respondent of all the offences U/s 193, 466 and 471 IPC.
Arguments heard. File perused.
Contentions
10. Learned Addl P.P. for the appellant has contended that sufficient evidence was led by the prosecution before the Trial Court that it is the accused who appeared before learned Addl. Rent Controller on 30.06.81, made statement Crl. Appeal No. 43/10 8 there regarding limited tenancy and that it stood established that it is accused who failed to establish before the Trial Court, his plea that he had not appeared before learned Addl. Rent Controller on 30.06.81 for the purpose of proceedings in the petition for creation of limited tenancy.
In support of his contention, learned Addl. P.P. has referred to the statement of PW3 Sh.Kuldeep Singh, concerned Learned Addl. Rent Controller, who dealt with application dt.29.06.81 Ex.PW3/A i.e. application U/s 21 of Delhi Rent Control Act; statements of the parties to the petition as available in sheet Ex.PW3/C and the order Ex.PW3/B passed by learned Addl. Rent Controller on 30.6.1981 On the other hand, learned counsel for the respondent has contended that no conviction can be based on assumptions, presuptions or conjectures; that the accused had no access to the judicial record of the proceedings before Rent Control Tribunal; that he never inspected the judicial record and had no connivance with court staff; that the respondent did not appear before Additional Rent Controller in any petition under Section 21 of DRC Act for the purposes of creation of limited tenancy and rather he being already in possession of the premises as a tenant continued to remain in its possession as consented to by the landlord; and that it has not been proved as to which copy of rejoinder was supplied to counsel for the landlord. So it has been argued that the appeal deserves to be dismissed.
Crl. Appeal No. 43/10 9
Discussion Proceedings under Section 21 of DRC Act before Additional Rent Controller
11. A perusal of application U/s 21 of Delhi Rent Control Act Ex.PW3/A would reveal that same was filed by the landlordSh. Amar Singh Sadana on 29.06.81. Mohan Singh, accusedrespondent herein was arrayed as respondent in the said application. Prayer in the application was for grant of permission for creation of tenancy for limited period of 2 years in favour of respondent - Mohan Singh in respect of single storey building no.E222, East of Kailash, New Delhi.
The application Ex PW3/A as per endorsement in its margin came to be assigned to PW3Sh.Kuldeep Singh, learned Addl. Rent Controller for 30.06.81. As per Ex PW3/C proceedings dated 30.6.1981, statements Ex PW3/B i.e. of petitioner - landlord applicant and Mohan Singh -tenantrespondent recorded by learned Addl. Rent Controller. Prayer was made for creation of tenancy for limited period even in the statements of the parties recorded on 30.06.81 In the order dt.30.06.81 Ex PW3/D passed by learned Addl. Rent Controller, it stands recorded that the parties had agreed for letting out of the premises for residential purposes and respondent had undertaken to vacate the premises on expiry of period of limited tenancy. Learned Addl. Rent Controller then recorded in the order Ex.PW3/D about his satisfaction that the premises was lying spare and was required by the petitioner - landlord only after the period of limited tenancy. Application was accordingly allowed granting the permission Crl. Appeal No. 43/10 10 sought.
Prosecution examined PW9 Sh. Tejbir Singh, grandson of Amar Singh, landlord. In his statement as PW9, Tejbir Singh stated about his presence before learned Addl. Rent Controller on 30.06.81, in the company of his grandfather Amar Singh in the application U/s 21 of Delhi Rent Control Act filed by his grandfather. He further stated about recording of statements of his grandfather, that respondent Mohan Singh and also about passing of the order in presence of the parties.
In the order dt.30.06.81 Ex.PW3/D, presence of Tejbir Singh does not stand recorded. Had his presence been marked in the proceedings, then it would have been the different matter. But in absence thereof Trial Court has rightly observed that it could not be said that PW9 was present before Additional Rent Controller on 30.6.1981 in the proceedings conducted in the application under Section 21 of D.R.C.Act.
A perusal of application Ex.PW3/A would reveal that it was signed by the petitioner and his Advocate. While appearing in court as PW3 Sh. Kuldeep Singh, Learned Addl. Rent Controller stated before the Trial Court about recording of statements of both the parties to the application and further that the parties were identified by Sh. Prem Kumar Khosla, Advocate. Learned Presiding Officer admitted in his cross examination that on record there was no Vakalatnama on behalf of Mohan Singh - respondent.
Ex.PW3/C - the sheet containing statements of the parties recorded would reveal that it bears endorsement of Sh. P.K. Khosla Advocate, regarding Crl. Appeal No. 43/10 11 identification of the parties. Sh. P. K. Khosla, Advocate who identified the parties before the Learned Presiding Officer, could not be examined by the prosecution, he having left this world. Non examination of Sh.P.K.Khosla therefore did not adversely affect the prosecution case.
Herein, it is in the statement of PW3 Sh. Kuldeep Singh, Learned Presiding Officer that proceedings on the petition under Section 21 of DRC Act were conducted in open Court. PW3 Sh. Kuldeep Singh, Learned Presiding Officer about recording of statements, that the statements bears signatures of the two parties, about the fact that the counsel had identified the parties, and that order Ex PW3/D was passed and about the proceedings conducted on 30.06.1981.
It is significant to note that presumption of judicial acts having been regularly performed in attached to the judicial proceedings conducted in open Court under Section 114 of Evidence Act. Every judicial act shall be deemed to have been properly performed unless contrary is proved as laid down under Section 114(1) of the Evidence Act. In the case of State of Maharashtra v. Ramdas Shrinivas Nayan AIR 1982 SC 1249, it has been held that matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation. We are bound to accept the statement of the Judges recorded in their judgments, as to what transpired in Court. The statement of the judges cannot be allowed to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, Crl. Appeal No. 43/10 12 said or admitted before them, that has to be last world on the subject.
In view of the plea put forth by the accusedrespondent it was for him to rebut the presumption by proving on record that he had not put in appearance before the Learned Addl. Rent Controller on 30.06.1981 and that he had left India on the night intervening 29/30.06.1981. Accused could file an application before the Trial Court for comparison of his handwriting and signature available in the proceedings before Addl. Rent Controller to show that signatures available in the proceedings dated 30.6.1981 were not his signatures. But the accused respondent did not file any such application.
However, before the Trial Court, the accused did not place on record any document including passport to prove that he had left India on the night intervening 29/30.06.1981. Therefore, oral testimony of DW1 Sh. D.S. Bhalla that he had taken the accused to airport on 29.06.1981 for his departure from India does not come to his help.
Therefore, when the Trial Court observed that neither the prosecution produced any witness on record to prove that the signatures on the order sheet dated 30.06.1981 were of the accused nor there was any opinion of any handwriting expert, the Trial Court fell in error.
As regards identity of the accusedrespondent as the party in the application under D.R.C.Act, PW3 Learned Addl. Rent Controller explained and rightly so that he was not in a position to identify the accused because several cases were to be handled by him and the matter pertained to the year 1981. Simply because the Addl. Rent Controller expressed his inability to Crl. Appeal No. 43/10 13 identify the respondent, the Trial Court could not hold that the witness had failed to identify accusedrespondent. The Trial Court ignored that before passing order allowing creation of limited period tenancy, the Learned Addl. Rent Controller had expressed his satisfaction from the proceedings conducted in open Court about the case put forth in the petition and in the statements made before that Court on 30.6.1981.
Even if PW3Addl. Rent Controller stated that there was no vakalatnama on behalf of accusedrespondent, in the petition under Section 21 of the Act, it could not be said that the respondent had not appeared in the proceedings on 30.06.1981. Presence or engagement of a counsel is not at all necessary in the proceedings. It is the wish of the parties to appear in the proceedings in person or to engage a counsel. When the respondent opted to appear in person, non filing of vakalatnama on behalf of the respondentaccused in the petition under Section 21 of the Act was no ground to disbelieve his presence in the said proceedings.
Therefore, Learned ACMM fell in error while observing that prosecution had failed to establish that the accused had appeared before the Addl. Rent Controller on 30.06.1981.
Conduct of the accused - respondent during litigation
12. In this case, conduct of accusedrespondent is of much significance.
Record reveals that execution petition No.74/84 titled as Amar Singh Vs. Mohan Singh was filed before learned Addl. Rent Controller. This fact has not been disputed even by the accused. The execution petition was dealt with by Crl. Appeal No. 43/10 14 Mr. B.B. Chaudhary, learned Addl. Rent Controller during the period from 30.10.84 to 20.03. 87. In the said execution petition, the accusedrespondent filed an objectionpetition before the Learned Addl. Rent Controller.
While appearing in court as PW2 Sh. B.B. Chaudhary, learned Addl. Rent Controller proved before the Trial Court ordersheets containing orders dt. 02.08.85, 06.09.85, 11.10.85 & 18.10.85. It is also in the deposition of PW2 that in the execution petition, statements of CW1 Mohan Singh (respondent herein) and Sh. Amar Singh (Decree Holder) were recorded on10.10.86 and 16.01.87. Ex.PW2/A to Ex.PW2/F are the ordersheets and depositions referred to above.
It is significant to note that the accused - respondent did not dispute passing of the aforesaid orders and recording of his statement on 10.10.86 and that of Sh. Amar Singh on 16.01.87 by way of evidence in the objection petition filed during pendency of the execution petition.
Record would reveal that Sh.Mohan Singh put forth the plea of his not participated in the procedings under Section 21 of DRC Act, for the first time, on by filing an application before the Rent Control Tribunal, and that too during pendency of appeal, as finds mention in the order dated passed by Learned Presiding Officer of Rent Control Tribunal. Therein, it stands recorded as under:
"During the pendency of the appeal an application was made on behalf of the respondent praying for permission to file Additional evidence with regard to permission under Section 21 of the Act having been obtained by the appellant in absence of this respondent according to him on 29.6.1981, the respondent was busy in Embassys for obtaining visa and on 30.6.1981 he left the country and purchased a ticket for Germany for his onward journey which Crl. Appeal No. 43/10 15 would be evidence from the entries in his Passport and Visa. That may or may not be so but the present application appears to be quite vague and in any case it appears to me an afterthought device on the part of the respondent in as much as no such plea about his absence before the Rent Controller was taken up by him in the objection filed in response to the execution application. In any case, this evidence would be wholly irrelevant in view of my finding that the respondent was not within his right to maintain the objection petition after expiry of the period of limited tenancy. The application has therefore no merit and is accordingly dismissed."
A perusal of order dt.18.10.85 passed by PW2 - Sh. B.B. Chaudhary, learned Addl. Rent Controller would reveal that in the objections filed to the execution petition no.74/84, the objector - respondent herein did not raise any objection by alleging that he was not present before learned Addl. Rent Controller on 30.06.81 i.e. when the statements of the parties to the application for creation on limited period of tenancy were recorded or that he had left India on the night intervening 29/30.6.1981.
There is no explanation on record as to why no such plea was taken in the objectionpetition. It is beyond comprehension that any party who disputes his appearance before the Court on a given date would not instruct his or her counsel about such an important fact or that such fact can be omitted from the pleadings. It is not case of the accused that his counsel did not plead this fact in the objection petition despite his directions. This circumstances speaks volumes against the accused.
As noticed above, Sh.B.B.Chaudhary has proved to have recorded statements of both the parties for the purpose of diposal of the objection petition filed by the accusedrespondent. Surprisingly, even in his statement recorded on Crl. Appeal No. 43/10 16 10.10.86 on the objection petition, as OW1 Sh. Mohan Singh, respondent herein did not state even a word that he had not appeared before learned Addl. Rent Controller on 30.01.86 or that he did not make any statement in the application for creation of limited tenancy.
Rather, in the second para of his statement, the objector stated that on expiry of second permitted period also the petitioner - landlord - decree holder asked him for increase of rent from Rs.2000/ to Rs.3000/ p.m. This goes to show that he rather admitted creation of limited period of tenancy on the basis of second permission. It can safely be said that by stating so he did not challenge his appearance before the Addl. Rent Conroller on 30.6.1981. This circumtance also speaks against the accusedrespondent.
A perusal of photocopy of the rejoinder proved by this witness and exhibited as Ex. PW2/G would reveal that the same bears the stamp of filing with signatures of Learned Presiding Officer at the back of only three initial pages i.e. page no.1 to 3. It is noteworthy that nowhere the tenantrespondent has explained as to how only initial three pages bear the stamp of filing and signatures of the Learned Presiding Officer. The remaining three pages do not bear the stamp of filing or the signatures or the the date of their filing.
From this it can safely be said that that page no.4 to 6 of the rejoinder came to be substituted subsequently with the pages filed initial. Had these pages no.4 to 6 been initially filed, these must have been bearing the stamp of filing and also bearing initials of learned Presiding Officer.
Accused could examine or file affidavit of his counsel or that of the Crl. Appeal No. 43/10 17 concerned typist before the concerned Courts to prove originality or authenticity of all the pages of the rejoinder. Surprisingly, accusedrespondent did not examine his counsel or any such typist before the Hon'ble Apex Court or before the Trial Court to prove that rejoinder, copies whereof are available on record, is the one drafted by his counsel, signed by him and his counsel. Nonexamination of typist or the counsel by the accusedrespondent to prove the originality of all the pages of the rejoinder also goes against the accused.
One document exhibited as Ex.PW2/G is copy of rejoinder filed by the present respondent on 11.10.85. It was filed as a counter the reply of the decree holder to the objection petition filed by the accusedrespondent in the aforesaid execution petition.
Another document i.e. Certified copy of the same rejoinder issued by the registry of Hon'ble Supreme Court of India has also been exhibited as Ex.PW2/G. PW2 Sh.B.B.Chaudhary, learned Addl. Rent Controller stated before the Trial Court that this certified copy does not bear, at its back, the stamp of filing. It is significant to note that in the course of arguments, learned counsel for accused - respondent has admitted that this copy certified by the registry of Hon'ble Supreme Court of India is the copy of the rejoinder filed before Hon'ble Apex Court and that it was filed there by the grand son of the landlord.
Record contains certified copy of rejoinder dt.26.10.98 against CA no. 14918/96. This is a certified copy of rejoinder stated to have been supplied to the landlord by the tenant before learned Additional Rent Controller during pendency of the execution proceedings. It is available from page no. 66 to 71 of Crl. Appeal No. 43/10 18 Trial Court Record. It is in the complaint Ex.PW8/A that copy of rejoinder said to have been served on counsel for respondent before the Trial Court was filed as annexure RI. Statement of PW8 Sh. L.C. Bhadoo, learned Registrar, Hon'ble Apex Court has not been subjected to any cross examination to as to suggest him that this certified copy is not the copy of rejoinder filed on record before Hon'ble Apex Court on behalf of the landlord. So it stands established that this is copy of the rejoinder that was supplied to counsel for landlord. For ready reference, this material document shall be hereinafter referred to as CX. It is true that while leading evidence before the Trial Court, the prosecution did not care to get this document exhibited during trial. This shows that proper attention was not paid by the concerned Public Prosecutor during the trial. But the fact remains that this very document was considered by the Hon'ble Apex Court while comparing its contents with the contents of the rejoinder to arrive at the conclusion that the later one had been tampered with by the accusedrespondent.
In the impugned judgment, the Trial Magistrate observed that copy of the rejoinder alleged to be have been supplied to the landlord had neither been produced nor exhibited on record. This observation regarding nonproduction of the said copy of the rejoinder is against record.
It is true that while appearing before Trial Court as PW1 Sh. B.S.Narang, counsel for the landlord who appeared in the proceedings before the Rent Control Tribunal could not say if copy supplied to him had contents different from the one available in Mark A1 to A7, but accused cannot take any advantage from this sole statement, in view of the other material available on record. Even Crl. Appeal No. 43/10 19 otherwise, PW1 rightly stated so, the reason being that the copy of the rejoinder supplied to him by counsel for tenant was not available with him on the day his statement was recorded in court i.e. on 29.10.99.
No doubt, in his statement PW1 Sh. B. S. Narang stated that original of mark A1 to A7 in the relevant file was bearing endorsement of filing with date as 11.10.85 under the signatures of Additional Rent Controller. But as noticed above photocopy of the rejoinder also exhibited as Ex.PW2/G bears stamp of filing with signatures of learned Presiding Officer with dt.11.10.85 only on initial three pages and not on the subsequent two pages. The witness was somehow not confronted with this aspect, while his statement was being recorded in court on 29.10.99. But the Court could take judicial notice of this fact while adjudicating the matter in dispute.
From the very beginning, it is case of the prosecution that copy of the rejoinder was handed over to the counsel for the landlord before the Rent Control Tribunal during pendency of appeal.
Prosecution also examined PW6 Sh. R. S. Endlaw, Advocate ( as His Lordship then was) and represented the landlord in connection with appeal filed before Rent Control Tribunal on 23.11.1994. When rejoinder was filed in the proceedings before Addl. Rent Controller, the learned Trial Magistrate should not have observed in para no. 29 of the judgment that a perusal of testimony of PW6 revealed that the witness had failed to throw any light on the allegation of interpolation or tampering.
Crl. Appeal No. 43/10 20
Conduct of the accusedrespondent before Hon'ble Apex Court.
13. Before Hon'ble Apex Court on 08.11.97, an additional affidavit was filed on behalf of landlord testifying therein that copy of the rejoinder filed by the tenant - respondent herein as annexure to the special leave petition and avilable in the paper book was not the correct copy and there was a deliberate tampering of the same. At that time, on behalf of the landlord was also filed a copy of the rejoinder said to have been served on his counsel before the Addl. Rent Controller. This fact has not been disputed by the respondent.
Before the Hon'ble Apex Court, on behalf of the landlord was also filed an application I.A.3 of 1997 for revocation of special leave granted stating that several false and misleading averments were made in the petition including that the accused - respondent was not present in India on 30.06.81 and that he did not appear before Additional Rent Controller. The fact of filing of such an application has also not been disputed by the respondent.
Had the additional affidavit and the application filed on behalf of the landlord before Hon'ble Apex Court been based on any falsehood, tenant would not have spared even a minute in filing an application before the Hon'ble Apex Court for initiating proceedings against the legal representatives of the landlord who were pursuing the proceedings. At no stage, the accusedrespondent filed any such application by way of counter attack for initiating proceedings against the landlord on the ground that this false ground of defence had been taken in the appeal before Hon'ble Apex Court.
In view of the material available on record, learned Trial Court fell in Crl. Appeal No. 43/10 21 error in observing that prosecution had not been able to establish any difference or tampering or interpolation in the rejoinder filed by accusedtenant on 11.10.1985.
Version put forth by the accused in Statement under Section 313 CrPC
14. As noticed above, the accused put forth defence plea that he was not present before Learned Additional Rent Controller on 30.06.81 and he had briefed his counsel regarding the actual facts and in the rejoinder he had raised objections in this regard.
A perusal of statement of accused under Section 313 CrPC would reveal that nowhere he put forth in defence plea that he left India on the night of 29/30.06.81. Even otherwise, in view of nature of the allegations levelled against him and the plea put forth by him for the first time before learned Rent Control Tribunal in application filed for additional evidence, it was for him to prove this special fact, which was within his knowledge. He could produce passport or examine witness from Embassy. However, he did not produce on record any passport or other document of travel to Germany from India so as to show that he was not in India on 30.06.81. Sec.106 of Indian Evidence Act put the burden of proving this fact on the accused as the same especially within his knowledge. Since, he failed to prove the same, adverse inference has to be drawn against him.
It may be mentioned here that in view of the material available on record, this Court finds that by tampering with rejoinder, it is only the accused Crl. Appeal No. 43/10 22 respondent who wished to get benefited in the proceedings before the Rent Control Tribunal and before the Hon'ble Apex Court. So there was sufficient motive only with the accused for tampering with the rejoinder. This circumstances of motive also connects the accusedrespondent with the commission of the crime.
Conclusion
15. In view of the material available on record i.e. in the form of judicial proceedings conducted in the petition under Section 21 of DRC Act and duly proved on record by the learned Presiding Officer Addl. Rent Controller, when the accused did not take any step for comparison of his handwriting and signatures on the proceedings dated 30.06.1981 and failed to prove on record his passport etc. to prove that he had left India on the night intervening 29/30.6,1981 for Germany, the Trial Court fell in error in arriving at finding that plea taken by the accused regarding his absence had not been proved to be a false plea.
From the above discussion, this Court also comes to the conclusion that the accusedrespondent forged the rejoinder forming part of Court record of Addl. Rent Controller by tampering with the same and thereby he made himself liable for an offence under Section 466 IPC. The findings recorded by the Trial Court regarding this head of the charge deserve to be set aside. It is ordered accordingly.
In view of the above findings, this Court further finds that when the accusedrespondent herein filed his affidavit before Hon'ble Apex Court alongwith SLP No. 22092/96 (C. A. No. 14918/1996), in support of his plea that Crl. Appeal No. 43/10 23 he was not in India on 30.01.1986 and that he had actually left India for Germany on the night intervening 29/30.01.1986, it can safely be said that he filed false affidavit before Hon'ble Apex Court to strengthen his false plea. Therefore, he made himself liable for an offence under Section 193 IPC The findings recorded by the Trial Court that prosecution failed to prove commission of offence under Section 193 IPC are hereby set aside.
Charge under Section 466 IPC (regarding introduction of page 79A i.e. photocopy of forged passport/visa)
16. As regards allegations of forgery i.e. regarding tampering with judicial record of Case no.749/94 by introducing forged passport / Visa as page no.79A, for Sh. Harbhajan Singh,the then Ahlmad in the court of Rent Control Tribunal deposed that photocopy of this document at page no.79A is mark X. According to PW4, so far as he remembered, this photocopy Mark X was on the file but he could not say if this document was on record, when RC no.749/94 was decided. He volunteered that this document appeared to have come on record alongwith application filed for leading additional evidence on 18.12.95. In the course of arguments, learned counsel for respondent has referred to the cross examination of PW4 wherein he admitted that in case any page is left by mistake same is given no.A like 79A. There is nothing on record to suggest that any list of documents was annexed to the application filed before additional evidence on 18.12.95. In absence of any list of documents annexed to the application, it cannot be said, as rightly submitted even by learned Addl. P.P. that this document Mark X was or was not there alongwith application and other Crl. Appeal No. 43/10 24 documents as on 18.12.95 or it was introduced in the file subsequently.
It is available from the record that passport was once shown to the Hon'ble Judge of Hon'ble Apex Court but thereafter it was never produced before the Court despite opportunity. Had the passport been produced by the accused or seized during investigation then the matter would have been otherwise. The fact remains that nothing can be said about the genuineness of photocopy available at page 79A and as to who introduced the same and at which stage of the proceedings.
Therefore, this court finds merit in the contention of learned counsel for respondent that charge for offence U/s 466 IPC as regards this photocopy of passport / Visa at page 79A, does not stand established. Findings recorded by the Trial Court that prosecution failed to establish this head of charge are upheld.
As a result of the above findings, the appeal is partly allowed and the impugned judgment of acquittal passed by Chief Metropolitan Magistrate, Delhi is hereby set aside so far it pertains to acquittal of the accused of the offences under Section 193 and 466 IPC ( so far as tampering of rejoinder is concerned). Consequently, this Court holds that the respondentaccused guilty of the offences under Section 193 and 466 IPC. He is convicted thereunder.
Let the convict be heard on the point of sentence.
Announced in Open Court
on 06.07.2012 (Narinder Kumar )
Additional Sessions Judge (Central)
Delhi.
Crl. Appeal No. 43/10 25
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL); DELHI
Crl. Appeal No.43/10
In the matter of:
State .......Appellant
Versus
Mohan Singh,
S/o Sh. Balwant Singh,
R/o A28, Amar Colony,
Lajpat Nagar,
New Delhi. .......Convict
On the point of sentence
Present: Convict with counsel Sh. Dhirender Singh
I have heard convict and his counsel on the point of sentence. Convict and his counsel have prayed for leniency on the point of sentence while submitting that case pertains to the year 1998 and that the accused faced trial before the Trial Court upto 14.07.2009. Learned counsel for convict has submitted that convict got married during trial and has got two children and wife to support; that he is more than 54 years of age, having no criminal background. Further it has been submitted that during investigation, he remained in custody for about 11 months. With these submissions, learned counsel for convict has submitted that leniency be shown and convict be Crl. Appeal No. 43/10 26 sentenced to imprisonment for the period already undergone. At the same time, learned counsel for convict has submitted that convict be extended concession of probation.
As held above, the convictrespondent has been convicted of the offence under Section 193 and 466 IPC. He not only tampered with Court record i.e. the rejoinder filed before Addl. Rent Controller, in execution proceedings, but also filed a false affidavit before Hon'ble Supreme Court of India, alongwith Special Leave Petition (C. A. 14918 of 1996) with intent to get favourable order against the landlord. As observed by Hon'ble Judges of Hon'ble Apex Court in the judgment dated 01.09.1998 while disposing of the appeal, the tenantaccusedconvict herein made an attempt to hoodwink Hon'ble Court and succeed in appeal. He was successful in getting the special leave and an order staying his dispossession from the tenanted premises.
Tampering with the record of judicial proceedings and filing of false affidavit, in a Court of law has become tendency of many litigants. It causes obstruction in the due course of justice. It does not only undermine the dignity of the Courts but also obstructs free flow of pure stream of justice. The stream of justice has to be kept pure, at all costs, and accordingly no person like the accused convict can be permitted to take liberties with law.
Having regard to all the facts and circumstances and the serious nature of the offences committed by the convict, he is hereby sentenced as under: Crl. Appeal No. 43/10 27 Name of Convict Offences Rigorous Fine Further Imprisonment Imprisonment in (Rs) default of payment of fine.
Mohan Singh (i) 193 IPC Five Years Rs.10,000/ Six months (ii) 466 IPC Five Years Rs.10,000/ Six months
It is made clear that both the substantive sentences of imprisonment shall run concurrently.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment. Benefits of Section 428 CrPC is extended to convict.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 06.07.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Appeal No. 43/10 28