Delhi District Court
State vs . Jai Bhagwan Tyagi on 13 September, 2012
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 67/88
U/S: 468/469/471/420/447 IPC
P.S: TIMAR PUR
STATE VS. JAI BHAGWAN TYAGI
:JUDGMENT:
Sl. No. of the case 3/2
Date of commission of offence 11.05.1982
Name of the complainant Jai Bhagwan
S/o Sh Kharak Singh
R/o Village and Post:
Burari, Delhi.
Name, parentage and address Jai Bhagwan Tyagi
of the accused. S/o Sh Khacheru
R/o Village and Post:
Burari, Delhi.
STATE VS. JAI BHAGWAN TYAGI 1/35
FIR NO. 67/88
Offence complained off U/s 468/469/471/420/447
IPC
Plea of accused Pleaded not guilty
Final order Convicted
Date of order 13.09.2012
Date of final arguments heard 13.09.2012
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts of the case in brief are that a complaint was lodged by one Jai Bhagwan s/o Kharak Singh with the allegations that Raj Kumar and his three brothers purchased a land measuring 1 bigha and 15 biswas at Khasra No 195 at Village Burari from one Lakhi Ram vide registered sale deed on 21.10.1971. Similarly one Bihari Lal and his three brother also purchased 10 bigha of land in Khasara No 194 at village Burari from one Lakhi Ram vide sell deed dated 21.10.1971. Thus total land measuring 2 bigha 5 biswas was purchased by them vide two separate sale deeds. That during consolidation the land came in Khasara No 123/10/2 and 123/11/1. The complainant was authorized to look after the land by its owner through one GPA executed in his favour. That in the year 1988 the complainant came to know that accused Jai Bhagwan Tyagi s/o Sh Khacheru has prepared a forged sale deed in his favour of the aforesaid land with forged signature of one Raj Kumar the original owner. The sale deed was STATE VS. JAI BHAGWAN TYAGI 2/35 FIR NO. 67/88 purported to have been executed on 11.05.1982 on basis of another forged GPA No. 131 dated 16.01.1981. Both the said documents were claimed to be registered documents but no record of said documents was found at Sub Registrar Office Delhi. That accused by using the forged sale deed fraudulently and dishonestly started selling the part of said land to other persons. Thus the present FIR was registered. In the final report it was also alleged that the accused sold of part of the said land to one Shakuntala Devi through GPA and handed over possession to them. The accused also filed a civil suit at Tis Hazari courts for permanent injunction against the owners Raj Kumar & Ors., by relying upon the said forged sale deed and GPA. The accused also used the said forged sale deed before the Hon'ble High Court in criminal writ petition in 232/88 and application under section 482 CrPC for quashing of the FIR by claiming the forged sale deed 11.05.1982 as genuine. The accused thereafter arrested in the present case and charge sheeted under section 419/420/467/468/471 IPC.
2. That after completion of investigation the challan against the accused persons was filed on 04.06.1993 and the accused was summoned. That vide order dated 18.05.1998 the Ld. Predecessor discharged the accused on the ground of deficiency of evidence and the forged sale deed dated 11.05.1982 the basis of the prosecution case being not seized. Subsequently the Hon'ble Sessions court vide order dated 17.09.2004, set aside the said order and remanded back the matter again to the trial court for hearing afresh on the charge as the forged sale deed was found to be on record. Thereafter the Ld. predecessor STATE VS. JAI BHAGWAN TYAGI 3/35 FIR NO. 67/88 vide order dated 19.08.2009 held that there was sufficient material on record to frame the charge against the accused. That vide order dated 04.09.2009, the charge under sections 468/469/471/420 and 447 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution has examined only 15 witnesses in order to prove their case.
4. The PW1 is the complainant on whose statement the present FIR was registered. He deposed that a land measuring 3 bigha and 5 biswas in Village Burari was in the name of Raj Kumar and his brothers. One persons namely Jindal and the owners of said land informed him that they had not sold the land to accused. They decided to lodge the complaint to the police. The 8 persons executed power of attorney in his favour with respect to the aforesaid land and accordingly he filed the complaint at police station Timar Pur. He was thereafter cross examined by Ld. APP. He admitted that Raj Kumar and his brother and Bihari Lal and his brother purchased the land measuring 1 bigha 15 biswas and 10 biswas respectively from Lakhi Ram vide registered sale deed. He further admitted that during consolidation the land came in Khasra no 123/10/2 and 123/11/1. The total land thereafter came to be 3 bigha 5 biswas. He found that accused prepared the forged sale deed showing sale of entire above said land in his favour by Raj Kumar vide sale deed 11.05.1982 on basis of GPA No 131 dated 16.01.1981. Both the said documents were found to be not registered STATE VS. JAI BHAGWAN TYAGI 4/35 FIR NO. 67/88 at Sub Registrar officer even though claimed. He filed complaint at police station Timar Pur on 17.04.1988 Ex. PW 1/A. On 18.04.1988 he handed over the photocopies of documents of land in question which were seized vide seizure memo Ex PW 1/B. He handed over photocopy of forged sale deed, copy of Khatanui Pamaish dated 25.03.1987 of the land, copy of application dated 04.04.1988 filed by Brij Kishan filed in the office of Sub Registrar for supply of copies of the registered documents, copy of sale deed dated 21.010.1971 executed by Lakhi Ram, copy of chakbandi proceedings dated 12.07.1974, copy of Khatanui Pamaish of the year 19801981, copy of GPA dated 07.04.1988 executed in his favour by Raj Kumar / Bihiri Lal and their brothers. He produced original sale deed dated 12.10.1971 executed by Lakhi Ram in favour of Raj Kumar which is Ex. P1. The sale deed dated 12.10.19971 executed by Lakhi Ram in favour of Bihari Lal is Ex P2. The Khatanui pamish of the year 19801981 is Ex P3. The GPA in his favour is Ex P4 and P5. He was extensively cross examined by the accused. He admitted in the cross examination that the land in question comprising 3 bigha 5 biswas was sold off by him and his partners.
5. The PW2 is Rohtash Kumar. He deposed that on 27.04.1988 he received notice from IO for producing the documents of his plot situated at Khasra No. 123/11/3 Sant Nagar Burari, Delhi. He produced the said documents which were seized by the IO vide seizure memo Ex PW 2/A. The said document was the GPA executed by accused in favour of his wife. Thereafter he was declared by hostile STATE VS. JAI BHAGWAN TYAGI 5/35 FIR NO. 67/88 by the prosecution and was cross examined by the Ld APP. He admitted that he purchased 100 sq yards of land from accused vide GPA dated 22.12.1986 which is mark P2. He constructed the house upon the said land. The accused stated to him that the plot falls in the Khasra No 123/11/3 and he was owner of the same. He denied the suggestion that the plot falls in Khasra No 123/10/1 and 123/10/2. He denied the suggestion that he has been cheated by the accused. He stated that since then he is in peaceful possession of said plot.
6. The PW3 is Ram Kishore who joined investigation on 17.08.1988. In his presence disclosure of accused Ex. PW 3/A was recorded. The accused confessed about forging of sale deed dated 11.05.1982 with help of one person namely Hans Raj. He was also extensively cross examined by the accused wherein he admitted that subsequently the land in question was disposed off by them through registered sale deed.
7. The PW4 is Inspector Anil Sharma who is the duty officer who proved the FIR Ex. PW 4/A.
8. The PW5 is Bihari Lal who alongwith his brother namely Ram Chand, Swroop Chand and Sat Pal purchased a piece of land in Khasra No 194 village Burari. He deposed that in the year 1988, they received information that their land has been encroached. Thereafter they came to Delhi and executed a power of attorney to manage the said land. Thereafter he was cross examined by Ld APP. He admitted that STATE VS. JAI BHAGWAN TYAGI 6/35 FIR NO. 67/88 Ex P2 was executed by one Lakhi Ram in his name and his brothers name with respect to land in question. He further stated that neither he or his brother authorized Raj Kumar to deal with their portion of land. He further admitted that GPA Ex P5 was executed by them for managing their land in favour of the complainant. He was also cross examined by the accused.
9. The PW6 is the retired Kanoongo Nand Lal who was deputed in the area of village Burari in the year 1988. He conducted demarcation proceedings alongwith halka patwari, police officials and the complainant. The demarcation proceedings report is Ex. PW 1/D which was handed over by him to the SHO police station Timar Pur. He admitted that two structures were found to be constructed upon khasra No 123/10/2 at Village Burari.
10.The PW7 is Arun Kumar one of the brother of Raj Kumar & Ors., who purchased land in the year 1971 in Khasra No 194 village Burari. He deposed that the sale deed Ex P1 was executed in their favour. Thereafter in consolidation proceedings they were allotted land in khasra No 123/10/2 and 123/11/1. In the year 1981 they were informed by one Hans Raj that their land has been encroached. Thereafter they executed GPA in favour of complainant Ex P4. He found that some structure was constructed on their land and one Shakuntala was residing there. He further admitted that neither his nor his brother authorized his brother Raj Kumar in dealing with the land owned by them. In further in admitted in his cross examination STATE VS. JAI BHAGWAN TYAGI 7/35 FIR NO. 67/88 by Ld. APP that in inquiry they found accused has forged documents of the land and sold a 100 sq yards of plot of their land to one Shakuntala.
11.The PW8 is Inspector Baltej Singh who joined investigation on 28.04.1988. In his presence complainant produced papers relating to Civil Suit No 76/88 pending in the court of Sudeep Aluwalia the then Ld. Civil Judge. The same were seized vide seizure memo Ex PW 1/C by the IO. On 31.07.1988 on the instructions of IO, he went to the Barnala and recorded the statements of Bihari Lal, Arun, Krishan, Satpal, Ram Chander and Swroop Chand. On 29.10.1988 he again joined the investigation and in their presence the demarcation proceedings were conducted in the presence of revenue officials vide report Ex PW 1/D on the disputed land.
12.The PW9 is the official of Sub registrar Office, Kashmiri Gate. He stated that as per their record sale deed dated 11.05.1982 purportedly entered in additional book No 1, volume No 350, registration No 208 and GPA No 131 dated 16.01.1981 entered in additional book No 1 or 4 volume No 153 were not found to be entered in their record. The sale deed dated 21.01.1971 with respect to land measuring 10 biswas in khasra No 194 and another sale deed dated 31.10.1971 with respect to land measuring 1 bigha and 15 biswas in khasra No 194 were found to be genuine. The record was exhibited by him as Ex. PX.
STATE VS. JAI BHAGWAN TYAGI 8/35 FIR NO. 67/88
13.The PW10 is the then Ahlmad in the court of Sudeep Aluwalia the then Ld. Sub Judge, Tis Hazari. He proved the notice mark PE of Civil Suit No. 76/88 filed by Jai Bhagwan against Raj Kumar and Ors.
14.The PW11 is Brij Kishan who moved the application before sub Registrar Officer, Kashmiri Gate on 04.04.1988 for supplying certified copies of sale deed dated 11.05.1982 and GPA dated 16.01.1981. The copies of the application are mark PB and PC.
15.The PW12 is the then record keeper in the office of Sub Registrar Kashmiri Gate. He received notice from SHO PS Timar Pur Ex PW 12/A through this notice the list of the documents were requested to be verified. As per their record the sale deed and GPA mentioned at serial no 1 and 2 were not found entered in their record.
16.The PW13 is the then Sub Registrar, Kashmiri Gate, Delhi. In the year 1988 he was served the a noticed under section 91 CrPC by SHO PS Timar Pur which is Ex PW 12/A. The sale deed dated 11.05.1982, GPA No 131 dated 16.01.1981, sale deed dated 21.10.1971 with respect to land measuring 10 biswas and another sale deed dated 31.10.1971 with respect to land measuring 1 bigha 15 biswas were requested to be verified in their office. After checking the record the reply was given by him vide Ex PW 13/A.
17.The PW14 is the IO Inspector D. N. Kaushik. On 17.04.1988 the complainant came at the PS alongwith complaint Ex PW 1/A which STATE VS. JAI BHAGWAN TYAGI 9/35 FIR NO. 67/88 was received by him. He made his endorsement Ex PW 14/A after which the FIR was registered. The investigation was conducted by him and he directed to complainant to produce the relevant documents. On the next the complainant produced the relevant documents which were seized vide seizure memo Ex PW 1/B. On the same day he issued notice u/sec 91 CrPC to Sub Register Office Kashmir Gate for information which is Ex PW 12/A. The reply was furnished by them is Ex PW 13/A. In the month of April /May 1988 the accused moved anticipatory bail application which was listed in the court of Sh V. S. Aggarwal the then Ld. ASJ (as his lordship then was ). The said application was adjourned with the direction to the accused to produce the original sale deed dated 11.05.1982 and GPA No 131 on 25.04.1988. On the next day the counsel for the accused produced original sale deed which was seized. The application for bail was dismissed vide order Mark 14 X. On 28.04.1988 he moved application for Ld ASJ for obtaining the original sale deed filed by accused vide Ex 14/B. The same was allowed and he received the sale deed. On the same day complainant also produced some more documents related to civil suit filed by accused which were seized vide seizure memo Ex PW 1/C. One person namely Rohtash Kumar husband of the Shakunata also produced GPA etc., with respect to plot 100 sq yards purchased by them from accused which were seized by him vide seizure memo Ex. PW 2/A. On 20.05.1988 he received a notice from Hon'ble High Court of Delhi regarding application moved by accused for quashing of the FIR. The order was passed for not arresting the accused. The said order is Ex PW 14/C. Another order is Ex PW 14/D. STATE VS. JAI BHAGWAN TYAGI 10/35 FIR NO. 67/88 He submitted his reply before the Hon'ble High court vide mark PW 14/ X1. The accused thereafter filed application in the court of Ld MM for surrender. On 10.08.1988 he moved application Ex PW 14/E for PC remand. Again on 11.08.88 application Ex PW 14/F was moved by him for PC. The disclosure statement of accused was recorded on 17.08.88 in police custody vide Ex PW 3/A and pointing out memo is Ex PW 3/B. Thereafter he wrote letter to SDM Kingsway camp for demarcation Ex PW 14/H. The demarcation proceedings were conducted and it was disclosed that in khasra No 123/10/2 had two rooms constructed illegally upon it. The copy of writ petition filed by accused in Hon'ble High Court is mark PW 14/X2.
18.The PW15 is Krishan Kumar who purchased the land alongwith his brother Raj Kumar and Ors., in the year 1971 in khasara No. 594 Village Burari. In consolidation khasra No 123/10 and 123/11 were allotted to them. In the year 1988 they were informed that some one has encroached upon their land and on the request of one Hans Raj they executed GPA in favour of complainant for taking legal action. He identified the signatures on P4 the GPA. He further submitted that Ex P6 the sale deed is forged one and his brother never visited Gaziabad. He further admitted in his cross examination by Ld. APP that signatures on Ex P6 were not that of his brother Raj Kumar. He was cross examined by Ld counsel for the accused. He admitted that Ex P6 the copy of the same was shown to them by police officials at Barnala on 1.05.1988.
STATE VS. JAI BHAGWAN TYAGI 11/35
FIR NO. 67/88
19.That vide order dated 05.05.2012, the prosecution evidence was
closed by the order of the court as prosecution failed to produced the remaining cited witnesses despite opportunities. The material witness Raj Kumar could not be examined as he was medically unfit and bed ridden. Thereafter that on 26.05.2012, the statement of the accused was recorded. He denied the allegation that he has forged the sale deed Ex P1. He further stated that he has been falsely implicated in the present case by the IO alongwith witnesses namely PW3 and PW11. The defence evidence was not led by accused. Thereafter on 29.06.2012, the application under section 311 CrPC was moved by Ld. APP for summoning the record from the Hon'ble High Court in writ petition No. 232/88 and record of civil suit in civil suit No 76/88. That vide order dated 03.07.2012 the said application was allowed.
20. The record keeper from the Hon'ble High court was examined as CW1. He produced the file in writ petition No 232/88. The copy of writ petition is Ex CW 1/A. The copy of affidavit is Ex CW 1/B. The application under section 482 CrPC filed alongwith the writ petition is Ex CW 1/C and the affidavit is Ex CW 1/D. The rejoinder affidavit of accused is Ex CW 1/E, the copy of order of Hon'ble High court dated 04.08.1988 is Ex CW 1/F and the affidavit filed by then SHO is Ex CW 1/G.
21.I have heard the Ld. APP for the State, Ld. counsel Sh Raj Pal Singh for the accused and gone through the record.
STATE VS. JAI BHAGWAN TYAGI 12/35 FIR NO. 67/88 CHEATING AND CRIMINAL TRESPASS
22. The first charge which has been levelled against the accused is that of cheating. Smt. Shakuntala and her husband Rohtash by fraudulently inducing them to deliver Rs 4,000/ as sale consideration for plot of 100 sq yards situated at khasra No 123/11/3, Sant Nagar Burari Delhi. That for proving the offence under section 420 IPC, the prosecution was required to prove the following ingredients.
(i) deception of any person, (ii) fraudulently or dishonestly inducing that person and (iii) the person so deceived should be induced to deliver any
property to any person or to consent any person shall retain any property (wrongful loss and wrongful gain) or
(iv) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
23.That for proving the said offence of cheating the material witness examined by the prosecution is PW 2 Rohtash Kumar. As per the allegations of the prosecution he alongwith his wife were cheated by accused by playing deception upon them as accused claimed himself to be the owner of property situated at Khasra No 123/11/3. It was also alleged by the prosecution that plot sold to him infact was located STATE VS. JAI BHAGWAN TYAGI 13/35 FIR NO. 67/88 at khasra No 123/10/2, which land belonged to Raj Kumar/Bihari Lal and their brothers. The PW2 did not support the version of the prosecution and turned hostile. He stated that he purchased 100 sq yards of land from the accused vide GPA dated 22.12.1986 and same was executed in favour of his wife. He further stated that the plot in question falls in khasra No 123/11/3 at Sant Nagar Burari, and accused himself stated this fact to them. He denied the suggestion that later on he came to know that the plot in question falls in khasra No 123/10/2 or 123/10/1. He further stated that he constructed residential house on the aforesaid plot and since then he is in peaceful possession of the plot in question. His wife was never cited as witness hence she has been not examined. Therefore the testimony of PW2 brings out the fact that he was never deceived by the accused and the property purchased by him falls in khasra No 123/11/3 only as claimed by the accused. Therefore the essential ingredient of deception and inducement upon PW2 or his wife are clearly missing .
24. It was also argued by Ld APP that by selling the land belonging to Raj Kumar and his brothers to Rohtash and his wife, the accused has also cheated the originals owner of the land namely Raj Kumar /Bihari Lal and their brothers. It was stated that even though the GPA mark P2 claims that property sold by accused falls in khasra No 123/11/3 but in fact that as per the report of revenue officials Ex PW 1/D the plot in question actually falls in 123/10/2 which was owned by Raj Kumar / Bihar Lal and others. As per the story of the prosecution the land sold by accused to the seller Rohtash by claiming himself to be STATE VS. JAI BHAGWAN TYAGI 14/35 FIR NO. 67/88 the owner of the plot, meaning thereby that the only the person upon whom the deception and inducement was played upon is the buyer of the plot. The owner of the land namely Raj Kumar /Bihar Lal and others were never deceived by the accused as is clear from the testimonies of PW7, PW5 and PW15. This issue of selling the land to another by claiming himself to be the owner came up before the Hon'ble Supreme court in Mohd. Ibrahim Vs State of Bihar 2009 (4) LRC 52 (SC), wherein it was held that the only persons as per the ingredients of section 420 IPC is cheated is the purchaser of the land. In view of the abovesaid reasons, I am of the opinion that no offence under section 420 IPC is made out against the accused.
25. The second charge which has been levelled against the accused that he dishonest intention and after deceiving the buyer handed over the possession of plot measuring 100 sq yards to them falling in khasra No 123/10/2 which was not owned by him. Therefore he encroached upon the land of Raj Kumar /Bihari Lal and others.
26.It has already been discussed, that the persons as alleged to have deceived namely Smt. Shakuntala and Rohtash by accused never supported the version of prosecution. PW 2 Rohtash categorically denied the suggestion that he was handed over the possession of plot situated in khasra No 123/10/2. He further claimed that his plot falls in khasra No 123/11/3, Sant Nagar Burari only as shown in the GPA mark P2 which was executed by accused in favour of his wife. He further claimed that since then he is in settled position at the STATE VS. JAI BHAGWAN TYAGI 15/35 FIR NO. 67/88 abovesaid plot. Therefore he has not supported the version of prosecution regarding criminal trespass at the property belonging to Raj Kumar / Bihari Lal and others.
27.The prosecution for proving the offence under section 447 IPC has also relied upon the demarcation report prepared by revenue officials Ex PW 1/D. As per the said report the structures constructed by Rohtash falls in khasra No 123/10/2 and not in khasra No 123/11/3 as claimed by the accused. The concerned revenue official PW 6 was examined by the prosecution who conducted the demarcation proceeding at the instance of IO. He prepared the report Ex PW 1/D. In his cross examination he admitted that in absence of any puktha stone or specific land mark it is difficult to demarcate the land. He further admitted that no local person of the Burari area was joined for demarcation. He further admitted he did not found any puktha stone as per the chakbandi at the spot at the time of demarcation. In these circumstance when the witness himself admitted that no such land mark or pukhta stone were found by him at the time of demarcation and hence not much relevance can be attached to his report Ex PW 1/D.
28. Further as per the story of the prosecution the land belonging to Raj Kumar /Bihari Lal and Other were sold by accused claiming it to be falling in khasra No 123/11/3 thereby encroaching their land. But in this regard the testimony of PW1 complainant who was appointed as GPA holder by Bihar Lal/Raj Kumar and others for the land in STATE VS. JAI BHAGWAN TYAGI 16/35 FIR NO. 67/88 question is relevant who admitted in his cross examination that he later on sold out the land in question falling in khasra No. 123/10/2 and Khasra No. 123/11/2 measuring 3 bigha 5 biswas alongwith three partners. The original owners of the land namely PW5 also admitted the same fact in his cross examination that they have sold the total land owned by them and possession of the same was handed over to respective buyers. In these circumstances when the prosecution witnesses themselves admitted that they have sold off the land in question measuring 3 bighs 5 biswas and possession being handed over, the charge of criminal trespass and encroachment upon the land does not survive.
FORGERY AND USING FORGED DOCUMENTS
29. The third charge which has been levelled against the accused is that the he prepared forged sale deed dated 11.05.1982 Ex P6 with respect to property situated at khasra No 123/10/2 and 123/11/1, Sant Nagar Burari by forging the signatures of Raj Kumar. That in order to prove its case the prosecution was firstly required to prove the ingredients of section 464 IPC i.e forgery. Further in this regard the definition of making of false documents as defined in section 464 is relevant.
The ingredients for the offence punishable u/s 464 of IPC are as under : (i) dishonestly or fraudulently makes, sings, seals or execute a STATE VS. JAI BHAGWAN TYAGI 17/35 FIR NO. 67/88
document , or part of a document, or makes any mark denoting the execution of a document; and
(ii) does as above with the intention of causing it to be believed that such document or part of a document was made, singed, sealed or executed.
(ii) by or by the authority of a person by whom or by whose authority it was not so made, signed, sealed or executed, or
(b) at a time at which he knows that it was not made, singed, sealed or executed.
30. It was alleged by the prosecution that accused created forged sale deed dated 11.05.1882 with the forged signatures of Raj Kumar. The said forged sale deed is Ex P6. As per the said forged sale deed the entire land in question comprising 3 bigha of 5 biswas of land was transferred in the name of accused. In the said forged sale deed the alleged executor Raj Kumar executed it on the basis of another forged document i.e GPA No 131 dated 16.01.1981 through which the other owners of the land authorized Raj Kumar to deal with the land in question. The said forged GPA was never produced in the court as the same was never recovered. Both the said documents were claimed to be to the registered documents. It was also claimed that the forged sale deed Ex P6 was registered.
31.The first argument which was raised with respect to forged sale deed Ex. P6 by Ld. Counsel for the accused was that it was never recovered STATE VS. JAI BHAGWAN TYAGI 18/35 FIR NO. 67/88 form the custody of accused. It is also not clear as how the said document came on record and due to this reason he firstly discharged on 18.05.1998. He further argued that the said document has been created by the complainant PW1 alongwith IO /SHO PW14 as they were having inimical relations with him .
32. The fact of sale deed Ex. P6 being forged has been duly proved by the prosecution. Further it was never claimed to be genuine by the accused. The witness namely PW15 one the brother of executor Raj Kumar was specifically confronted with the signatures of his brother on Ex. P6 at point A, B, C, d and E, to which he denied that the signatures did not belong to his brother. This aspect of his testimony was never denied by the accused in the cross examination of PW15. This fact of forgery is also corroborated by the other witnesses namely PW 7 and PW5 the other owners of the property. They specifically denied the fact Raj Kumar was not alone authorized to deal with the land jointly owned by them. The PW 15 further stated that his brother never ever visited Gaziabad where the sale deed Ex. P6 was claimed to have been executed. The accused again in the cross examination of PW 7 and PW5 never denied this fact that signatures on Ex. P6 were forged. Therefore this fact of forged signatures of Raj Kumar on Ex. P6 has been duly proved by the prosecution which has also been admitted by the accused .
33.The next question is as from whose custody the sale deed Ex.P6 was recovered and how it came on record needs to be considered. It was STATE VS. JAI BHAGWAN TYAGI 19/35 FIR NO. 67/88 deposed by the IOPW14 that sale deed was produced by the Ld. Counsel for accused before the court of Sh. V. S. Aggarwal, the then LD. ASJ (as his lordship then was ) while hearing the anticipatory bail application. The said sale deed was seized by the court. This fact of filing the anticipatory bail application was never denied by the accused as no suggestion was ever given to PW14 that the order( Mark PW 14 X) of the Ld. ASJ was not true or created document .It was also never denied by the accused that the Ld. ASJ seized the sale deed produced by his counsel. He only argued that the sale deed which was seized was the sale deed in his favour was with respect to his own land situated at khasra No. 123/11/3 at Village Burari. The question of land owned by the accused at khasra No.123/11/3 was never an issue before the court while hearing the bail application. Further it has never been denied by the prosecution regarding the ownership of land of the accused . Therefore their was no occasion for the court to seize the sale deed with respect to the land never in dispute. The PW14 also filed his affidavit Ex CW 1/G before the Hon'ble High Court in the writ petition 232/88 filed by the accused wherein the same fact was asserted by him regarding seizure of sale deed Ex P6 by Ld ASJ on hearing of anticipatory bail application. Therefore the version of PW14 regarding the seizure of the sale deed Ex. P6 from the court after being produced by the accused seems to be believable.
34. It was also argued by the Ld. Counsel for the accused that as per seizure memo Ex. PW1/B it was claimed by the PW1 that he has supplied the copies of the documents listed in memo to the IO and STATE VS. JAI BHAGWAN TYAGI 20/35 FIR NO. 67/88 will produce original before the court .Therefore it was argued that Ex. P6 always remained in his custody and same was created by him only to falsely implicate the accused .
35.The complainant in the present was examined as PW1. He in his examination in chief specifically clarified that he does not have in possession the original of Ex. P6 . The PW1 never either in the chief or in cross examination stated that he was in possession of Ex. P6 at any point of time . The only supplementary statement Mark PW1/DX1 recorded by the police u/s 161 CrPC talks of production of documents submitted by PW 1 to the IO. It talks about all the documents in general and no specific document has been mentioned. It is quite possible that the IO recorded the statement in a casual manner without specifying the details of the documents. This defect in the investigation does not affect the case or prosecution in the present case. In this regard the judgment of the Hon;ble Supreme Court in Dhanaj Singh @ Shera and Ors., Vs State of Punjab 2004 (3) SCC 654 is quite relevant. The Hon'ble Supreme Court observed as under : "in case of a defective investigation the Court has to be circumspect in evaluating the evidence . But is would be right in acquitting an accused person solely on account of the defect ; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
STATE VS. JAI BHAGWAN TYAGI 21/35 FIR NO. 67/88
36.The next point which requires to be considered as to by whom the forged sale deed Ex P6 was executed. As per the story of the prosecution the same has been created by accused as it is in his favour and he used it for usurping the land owned by Raj Kumar/Bihari Lal and their brothers. The prosecution in the present case has not tried to take the help of CFSL for comparison of handwriting. The PW 7 and PW14 in their cross examination stated that the specimen signatures were taken. The PW14 IO further stated that he did not sent the specimen signatures of the original owners to FSL for examination. The specimen signatures of the accused were never taken hence no CFSL examination with the forged signature on Ex P6 was undertaken. In these circumstance, it can not be assumed that the forged signature on Ex P6 have been done by accused. Therefore the offence under section 468 IPC does not survive for want of evidence as to the author of Ex P6.
37.The last charge which was levelled against the accused was regarding the use of forged sale deed Ex P6 as genuine by accused in the Hon'ble High of Delhi in writ petition No. 232/88 and in civil suit filed by him before the civil court at Tis Hazari Courts.
38.That for proving the said charge the material witnesses examined by the prosecution is PW10. He was the Ahlmad in the court of Sh Sudeep Aluwalia, Ld. Sub Judge. He stated that notice mark PE alongwith the copy of the plaint in civil suit in No. 76/88 was filed in their court in the year 1988. He identified the signature of the Ld. STATE VS. JAI BHAGWAN TYAGI 22/35 FIR NO. 67/88 Judge on notice mark PE. But the prosecution has failed to prove the copy of the plaint in civil suit No 76/88 as neither the original of the plaint nor the certified copy of the same was produced by them. The copy attached with the notice mark PE can not be read into evidence. Later on after the conclusion of the trial the file in civil suit No 76/88 was summoned vide order dated 03.07.2012, but same could not be traced due to want of complete consignment particulars.
39. The other forum where the accused used the forged sale deed Ex P6 as genuine was before the Hon'ble High Court in writ petition no 232/88. The said writ petition was proved by CW1 the record keeper from the Hon'ble High Court as CW 1/A. He also proved the copy of application under section 482 CrPC listed as criminal misc., application No. 152/88 as Ex CW 1/C.
40.It was argued by the Ld counsel for the accused both Ex CW 1/A and Ex CW 1/C does not bears the signature of the accused. He further stated that as per the cross examination of CW1 there was no Vakalatnama in the file brought by him. He further argued that the affidavits filed alongwith writ petition and application Ex. CW 1/B and Ex. CW 1/D respectively are not admissible in evidence as the same are no attested as per the provisions of Oath Act and Delhi High Courts Rules. It was argued that the said writ petition or application was never filed by the accused and same must have been filed by the complainant and IO in order to falsely implicated him.
STATE VS. JAI BHAGWAN TYAGI 23/35 FIR NO. 67/88
41. This argument was for first time raised at final argument that he never filed any writ petition before Hon'ble High Court. This argument was never raised at the time of charge both before this court and Ld. Sessions Court, even though accused was aware of this fact as copies of petition were supplied to him under section 207 CrPC. The other argument was raised by the Ld counsel for the accused that Ex. CW 1/A and Ex. CW 1/C both the does not carries the signatures of the accused. But it is a fact for which the judicial notice can be taken that as per the practice directions of the Hon'ble High Court any writ petition filed through Counsel does not requires the signatures of the petitioner. The next argument of the accused of their being no Vakalatnama executed by the accused in favour of the counsel can not be believed. The index of the writ petition at point 13 list that the power of attorney was filed alongwith the petition. The other argument of the accused that affidavit Ex. CW 1/B and Ex. CW 1/D filed alongwith the writ petition and application are not admissible is also without any support of law. It was argued that in both the said affidavits the deponent has been identified by the clerk of the counsel which is against the law and hence they are not admissible. The chapter 12 of Delhi High Court Rules 1967 deals with aspect of affidavit filed in a court. The rule 11 specifically lays the procedure with respect to the identification of deponent. The attesting officer can get the identification of the deponent from any other person known to him. Therefore, the rules does not prescribe that the identification of the deponent at the time of attestation has to be done by only the advocate of deponent.
STATE VS. JAI BHAGWAN TYAGI 24/35 FIR NO. 67/88
42.In this regard the presumption under section 114 of Indian Evidence Act has also to be raised. It has to be presumed that judicial acts in judicial proceedings must have been performed regularly. In this regard the judgment of Hon'ble of Supreme Court in State of Maharashtra Vs Ramdash Shirniwas Nayan AIR 1982 SC 1249, is quite relevant. It was held that the matters of judicial record and proceedings are unquestionable. They are not open to doubt. In the present case in hand this presumption has to be raised with respect to the regularity of the writ petition filed by the accused Ex CW 1/A. The writ petition was entertained by the Hon'ble High Court as is clear from the order of dismissal Ex. CW 1/F dated 04.08.1988. The same was not dismissed on the technical grounds but on merits. Therefore it has to be held that the writ petition Ex. CW 1/A was filed as per the requirements of law and rules and therefore the same was entertained by the Hon'ble High Court. The question of missing Vakalatanama has to be appreciated keeping in view of the fact the file was summoned after about 24 years of the filing of the writ petition and possibility and misplacing of it can not ruled out.
43.The supplementary statement of the accused u/sec 313 CrPC with respect to the said piece of evidence was recorded on 28.07.2012 is also relevant and the answers given by him have to be taken into consideration in terms of section 313 (4) of CrPC. The accused was specifically asked about the writ petition Ex CW 1/A No 232/88 and affidavit Ex CW 1/B filed alongwith it. He admitted that he filed the writ petition in the Hon'ble High Court but do not know its number.
STATE VS. JAI BHAGWAN TYAGI 25/35 FIR NO. 67/88 He further stated that he can not admit or deny his signature on affidavit Ex CW 1/B. The same answer was given by him with respect to the application Ex. CW 1/D and affidavit Ex CW 1/F. Thus the accused never denied the contents of the writ petition filed by him in the Hon'ble High Court. He only expressed his ignorance with respect to the number assigned to the writ petition. The question of use of answers in the statement under section 313 of CrPC came up before the Hon'ble Supreme Court in Ravi Kapoor Vs State of Rajesthan 2012 VIII AD (SC) 73. The relevant para is reproduced is here under : "It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 CrPC are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and , secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case".
STATE VS. JAI BHAGWAN TYAGI 26/35 FIR NO. 67/88
44. The present case in hand the filing of writ petition before the Hon'ble High Court was the special fact within the knowledge of the accused which was admitted by him. Therefore the writ petition Ex. CW 1/A and the contents thereof have to be read against him. In the said writ petition in para no 2A the accused claimed that he purchased the land in question from Raj Kumar through sale deed dated 11.05.1982. He further claimed that the said sale deed and power of attorney dated 16.01.1981 were duly registered documents. He further claimed that he is in a possession of said land and has constructed a house over it. In the para 2d the accused claimed that he was also compelled to file the civil suit for permanent injunction against Raj Kumar and other co owners in respect to land in question wherein the status co order was passed. The accused also filed the copy of sale deed Ex P6 as annexure A in the writ petition Ex CW 1/A. Therefore the contents of the writ petition Ex CW 1/A discloses the dishonest and fraudulently intention on the part of accused in claiming the property of land measuring 3 bighs, 5 biswas on the basis of forged sale deed Ex P6. He also claimed it to be registered even though same was never registered as per the report Ex. PX. The accused also knowingly used the forge sale deed Ex P6 as genuine document both the before the Hon'ble High Court and in the civil suit in order to grab property owned by Raj Kumar /Bihari Lal and their brothers.
45.In view of above said discussion, I am of considered view that the prosecution has been able to prove their case successfully beyond STATE VS. JAI BHAGWAN TYAGI 27/35 FIR NO. 67/88 reasonable doubt against the accused Jai Bhagwan Tyagi only under section 471 IPC. In view of the above said reasons, accused Jai Bhagwan Tyagi is convicted for the offence punishable u/s 471 IPC. Arguments on sentence to be heard separately.
(Announced in the open court)
Dated: 13.09.2012 (GAGANDEEP SINGH)
MM01/NORTH
TIS HAZARI : DELHI
STATE VS. JAI BHAGWAN TYAGI 28/35
FIR NO. 67/88
CC/FIR No. 67/88
P.S. TIMAR PUR
STATE VS. JAI BHAGWAN TYAGI
13.09.2012
Present: Ld. APP Sh. Manan Munjal for the State.
Accused Jai Bhagwan Tyagi in person with Ld. Counsel Sh Raj Pal Singh.
Final arguments heard.
Vide my separate detailed judgment of the even date accused Jai Bhagwan Tyagi is convicted for the offence u/s 471 IPC.
To come up on 17.09.2012 at 01:00 PM for arguments on the point of sentence.
(GAGANDEEP SINGH)
MM01/NORTH DELHI
13.09.2012
STATE VS. JAI BHAGWAN TYAGI 29/35
FIR NO. 67/88
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 67/88
U/S: 468/469/471/420/447 IPC
P.S: TIMAR PUR
STATE VS. JAI BHAGWAN TYAGI
18.09.2012
ORDER ON SENTENCE
Present: Ld. APP Sh. Manan Munjal for the State.
Convict Jai Bhagwan Tyagi in person with Ld Counsel Sh Raj Pal Singh.
Vide my separate detailed judgment dated 13.09.2012, convict Jai Bhagwan Tyagi has been convicted for the commission of offence punishable u/s 471 IPC.
Arguments on the point of sentence heard.
Record perused.
Ld. APP has argued that he is liable to be given maximum punishment for having been found guilty for the offence u/s 471 IPC. It has also been argued by the Ld APP STATE VS. JAI BHAGWAN TYAGI 30/35 FIR NO. 67/88 that the convict is a habitual offender having many cases pending against him pertaining property disputes. The list of the cases is already on record filed by the IO.
On the other hand the Ld Counsel for the convict submits that the convict has faced trial in the present case for the last 25 years. That due to the default on the part of prosecution convict has to suffer the trial for period of about 25 years. It is also submitted by him that convict now is aged about 65 years and is well settled in the society. He also has the family obligations. It is also submitted that the Ld. counsel for the convict that after the registration of the present case no other criminal involvement of the convict has been reported.
At this stage, the Ld counsel for the convict has also moved an application under section 3/4 of Probation Offenders Act, 1958. It is argued that the Ld counsel for the convict that as per the facts no injury has been caused either to the complainant or the owners of the property due to the act of convict. The property in question as has been admitted by the owners were later on sold off by them. It is also argued that as per the list of previous involvements the convict has been convicted only in case FIR No. 590/70 PS Kashmiri Gate STATE VS. JAI BHAGWAN TYAGI 31/35 FIR NO. 67/88 under section 419/420 IPC. He was released on probation alongwith payment of compensation. Therefore section 12 of the Act will apply in this case. It is also submitted by him that in case FIR No. 322/70 PS Ali Pur he has been acquitted by the appellant court.
I have heard the parties and gone through the record.
The Ld counsel for the convict has relied upon the section 4 of POA Act, where the previous conviction is not a bar. He has also relied upon the judgment of Hon'ble Supreme Court in Daljeet Singh Vs State of Punjab V (2006) SLT 569.
It is matter of record that convict has already been convicted in case of cheating at PS Kashmiri Gate. The said case pertains to year 1970 and on the other hand the present case has been registered subsequent to the out come of case in FIR No 590/70 PS Kashmiri Gate. The convict thus seems to be a habitual offender. The present case in hand also pertains to cheating and use of forged documents for purposes of cheating. The convict in the present case used the forged sale deed stated to be registered as genuine before the Hon'ble High Court and civil court. The present use of the forged STATE VS. JAI BHAGWAN TYAGI 32/35 FIR NO. 67/88 documents by the convict was done with the intention of depriving the original owners of their property. It is also matter of record that the original owners of the property out of frustration and helplessness executed GPA in favour of complainant. Thus they were deprived of their property and its real value. Thus the circumstances in the present case shows that due to the acts of the convict, the original owners of the property suffered a lot and the manner in which the forged documents were used in the court shows the utter disregard for the law.
In view of the abovesaid reasons, I am not inclined to grant probation to the convict in the present case. The application for probation is thus dismissed.
It is also admitted fact that, the convict faced the rigours of trial in the present case for 25 years. The said delay was not due to the fault or conduct of the convict. The age of the convict has also taken into consideration.
At this stage, I would also like to appreciate the conduct of the convict during the trial. The Ld counsel for the convict also extended great cooperation in the expeditious trial of the present case and due to their cooperation the trial could be completed within two years of the framing of charge.
STATE VS. JAI BHAGWAN TYAGI 33/35
FIR NO. 67/88
In view of the abovesaid reasons, the convict is
sentenced to simple imprisonment for period of one year for the offence u/sec 471 IPC. The convict is also sentenced to pay Rs 1,000/ as fine for the offence u/sec 471 IPC. IDSI 10 days.
The convict has been remained in custody for about 2 months in the present case. Therefore the benefit under section 428 CrPC be also given to the convict.
Ordered accordingly.
File be consigned to Record Room.
(Announced in the open court)
Dated: 18.09.2012 (GAGANDEEP SINGH)
MM:NORTH(01)
TIS HAZARI DELHI
STATE VS. JAI BHAGWAN TYAGI 34/35
FIR NO. 67/88
CC/FIR No. 67/88
P.S. TIMAR PUR
STATE VS. JAI BHAGWAN TYAGI
18.09.2012
Present: Ld. APP Sh. Manan Munjal for the State.
Convict Jai Bhagwan Tyagi in person with Ld counsel Sh Raj Pal Singh.
Vide my separate detailed judgment dated 13.09.2012 convict Jai Bhagwan Tyagi has already been convicted for the commission of offence punishable u/s 471 IPC.
The convict has been sentenced in terms of the separate order on sentence under section 471 IPC.
At this stage an application under section 389 CrPC has been moved on behalf of convict seeking suspension of sentenced till filing of appeal and bail.
That keeping in view facts and circumstance, the convict is admitted on bail on furnishing personal bond of Rs 10,000/ with one surety of like amount till the filing of the appeal.
Fine of Rs 1,000/ has been paid.
Bail bond furnished, considered and accepted till 18.10.2012.
(GAGANDEEP SINGH)
MM01/NORTH DELHI
18.09.2012
STATE VS. JAI BHAGWAN TYAGI 35/35
FIR NO. 67/88