Bangalore District Court
State By Yelahanka New Town Police ... vs Sangamesh Havannanavar on 30 June, 2018
IN THE COURT OF THE 44TH ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 30th day of JUNE 2018
:Present:
Smt. Mala N.D., B.A.L., LL.B.,
44th ACMM, Bengaluru
C.C.No.15585/2012
Complainant : State by Yelahanka New Town Police station
(By Sr. Asst. Public Prosecutor)
-V/s-
Accused : Sangamesh Havannanavar,
S/o Late Gurulingappa,
Aged about 61 years,
R/at No.74/D, 17th 'A'Cross,
4th Block, 4th Stage,
Basaveshwara Nagar, Bengaluru.
(By Sri. G.K. Venkata Reddy, advocate )
JUDGMENT
This case has arisen out of a private complaint filed by one Smt Leela Rajgopal against accused for the offences punishable U/s. 465, 468, 471 and 420 of IPC.
2 C.C.No.15585/2012
2. The complaint averments reads thus:
Complainant C.W. 1 Smt. Leela Rajgopal has purchased two sites bearing No.55 and 56 out of Sy.No.23/2, measuring 60 x 40 feet each, situated at Chikkabettahalli village, Yelahanka Hobli, Bengaluru North Taluk, within the limits of Yelahanka New Town Police Station, got registered the same in her name under No.1598/1989-90 dated 22/01/1990. Thereafter, due to her ill health, she had executed GPA in respect of aforesaid property in favour of her brother C.W. 5 Sri. R.V.N. Kadambi on 13/02/2004, during that time, on coming to know about the missing of original sale deed of aforesaid sites, C.W. 1's another brother C.W. 6 Sri. R.V. Venkata Krishna had lodged a police complaint on 23/03/2004 in Bengaluru High Grounds Police Station. Later, C.W. 5 Sri. R.V.N. Kadambi, on the strength of GPA sold aforesaid site under two registered sale deeds to C.W. 7 Sri. Kishore Kumar on 17/04/2004, got registered the same in his name under document No. BNG(U)/YLNK/1177/2004-05. Thereafter C.W. 7 Sri. Kishore Kumar, sold site No.55 to C.W. 8 Sri. N. Jayaram on 10/05/2004 3 C.C.No.15585/2012 under document No. BNG(U)/YLNK/2383/2004-05 and site No.56 was sold in the name of Smt. Roopa i.e. wife of C.W. 9 Sri. N. Jayaram Reddy, on 02/06/2004 under document No. BNG(U)/YLNK/4406/2004-05 and are put in possession of aforesaid sites.
When such being the case, accused somehow got the missing original sale deed of C.W. 1 Smt. Leela Rajgopal, instead of returning the same to C.W. 1, with a malafide intention of making unlawful gain, by taking undue advantage, by impersonation, has entered in to sale agreement on 24/11/2001, by forging her signature and thumb impression of C.W. 1, thereby created a forged document in his favour and on the strength of said sale agreement, filed a civil suit against C.W. 1 Smt. Leela Rajgopal for specific performance of contract in O.S. No.17336/20015, before Mayo Hall Court, CCH No.22, by providing false address of C.W. 1 Smt. Leela Rajgopal, under the pretext that, she is the resident of Jayanagar, obstructed her from appearing before the court and in her absence obtained an ex-parte judgment and decree of permanent injunction on 02/06/2008. Based on the said judgment and decree, got registered 4 C.C.No.15585/2012 the aforesaid properties in his name on 24/01/2011 under document No. BNG(U)/BYP-1-05401/2004-05 with a fraudulent intention of making unlawful gain, thereby cheated C.W. 1, 8 and 9 with a malafide intention of causing unlawful loss to them. Therefore, complainant Smt. Leela Rajgopal has filed private complaint against accused before this court, which was referred to investigation under Section 156(3) of Cr.P.C. As such, this case came to be registered against the accused. During the course of investigation I.O. visited the place of incident, drawn spot mahazar in the presence of the witnesses, recorded the statement of witnesses and after completion of investigation filed charge sheet against the accused for the aforesaid offences.
3. Upon issuance of court summons, accused has appeared before this court through his counsel and has obtained bail.
4. The copies of complaint and annexed documents have been furnished to the accused as required under Sec.207 of Cr.P.C. The cognizance of offences punishable U/sec. 465, 468, 471 and 420 of IPC has been taken as per Sec.190 of Cr.P.C.
5 C.C.No.15585/2012
5. Evidence before charge was recorded. Later, the charge is framed, contents of charge have been read over and explained to the accused in the language known to him, he pleaded not guilty and claimed to be tried. Hence, the prosecution is called upon to prove its case.
6. The complainant through prosecution, in order to prove his case, examined 12 witnesses as P.W. 1 to 12 and got marked 26 documents at Ex.P.1 to P.26 and closed her side evidence.
7. After completion of complainant's side evidence, the statement of accused as required under Section 313 of Cr.P.C. has been recorded, wherein he has denied the incriminating evidence adduced against him and he has not chosen to lead his side defense evidence, at the same time, five documents are confronted during cross-examination of prosecution witnesses and they are marked as Ex.D.1 to D.5. Hence, the case is posted for arguments.
8. Heard both the side and perused the material evidence on record.
6 C.C.No.15585/2012
9. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, Complainant C.W. 1 Smt. Leela Rajgopal has purchased two sites bearing No.55 and 56 out of Sy.No.23/2, measuring 60 x 40 feet each, situated at Chikkabettahalli village, Yelahanka Hobli, Bengaluru North Taluk, within the limits of Yelahanka New Town Police Station, got registered the same in her name under No.1598/1989-90 dated 22/01/1990.
Thereafter, due to her ill health, she had executed GPA in respect of aforesaid property in favour of her brother C.W. 5 Sri. R.V.N. Kadambi on 13/02/2004, during that time, on coming to know about the missing of original sale deed of aforesaid sites, C.W. 1's another brother C.W. 6 Sri. R.V. Venkata Krishna had lodged a police complaint on 23/03/2004 in Bengaluru High Grounds Police Station. Later, C.W. 5 Sri. R.V.N. Kadambi, on the strength of GPA sold aforesaid site under two registered sale deeds to C.W. 7 Sri. Kishore Kumar on 17/04/2004, got registered the same in his name under document No. BNG(U)/YLNK/1177/2004-05. Thereafter C.W. 7 Sri. Kishore Kumar, sold site No.55 to C.W. 8 Sri. N. Jayaram on 10/05/2004 under document No. BNG(U)/YLNK/2383/2004-05 and site No.56 was sold in the name of Smt. Roopa i.e. wife of C.W. 9 Sri. N. Jayaram Reddy, on 02/06/2004 under document No. BNG(U)/YLNK/4406/2004-05 and are put in possession of aforesaid sites. When such being the case, accused somehow got the 7 C.C.No.15585/2012 missing original sale deed of C.W. 1 Smt. Leela Rajgopal, instead of returning the same to C.W. 1, with a malafide intention of making unlawful gain, by taking undue advantage, by impersonation, has entered in to sale agreement on 24/11/2001, by forging her signature and thumb impression of C.W. 1, got created forged document in his name and thereby committed an offence punishable under Section 465 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused thereafter filed a civil case against C.W. 1 Smt. Leela Rajgopal, alleging that, inspite of sale agreement executed by her, she has not got registered the sale deed in his name in O.S. No.17336/20015, before Mayo Hall Court, CCH No.22, provided false address of C.W. 1 Smt. Leela Rajgopal, as she is resident of Jayanagar, obstructed her from appearing before the court, thereby concocted and fabricated the documents and committed an offence punishable under Section 468 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused inspite of knowing that the aforesaid documents are forged, concocted and fabricated one, used the same as genuine one and in the absence of C.W. 1 before the court, obtained ex-parte permanent injunction judgment and decree from aforesaid court on 02/06/2008 and 8 C.C.No.15585/2012 thereby committed an offence punishable under Section 471 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused got registered the aforesaid properties in his name on 24/01/2011 under document No. BNG(U)/BYP-1-05401/2004-05 with a fraudulent intention of making unlawful gain, cheated C.W. 1, 8 and 9 with a malafide intention of causing unlawful loss to them and thereby committed an offence punishable under Section 420 of IPC?
5. What Order?
10. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : IN THE NEGATIVE
Point No.4 : IN THE NEGATIVE
Point No.5 : As per final order for the following
9 C.C.No.15585/2012
REASONS
11. Point No.1 to 4: All these points involve similar set of facts and circumstances, hence, taken up together for common discussion.
12. In this case, the prosecution has cited as many as 16 witnesses and among them 9 witnesses have been examined. This case has been registered on the strength of a private complaint on the allegation of forgery and fabrication of documents for the purpose of cheating by one Sangamesh Havannanavar, who is an accused herein.
13. This case is about forgery and fabrication of false documents in respect of site No.55 and 56 of Chikkabettahalli, as such, this case revolves around an agreement of sale dated 24/11/2001, allegedly forged by the accused and on the strength of which there is a judgment and decree of specific performance in favour of accused. According to the prosecution, accused some how has procured original documents i.e. original registered sale deed pertaining to site property bearing No.55 and 56 carved out of Sy.No.23/2 of Chikkabettahalli village, for which C.W. 1 was the 10 C.C.No.15585/2012 absolute owner in possession having acquired the same under a registered sale deed dated 22/01/1990, due to her ill health, executed a GPA in favour of her brother C.W. 5 Sri. R.V.N. Kadambi on 13/02/2004 and it is thereafter, C.W. 5 on the strength of GPA executed in his favour sold the aforesaid sited in favour of one Sri. Kishore Kumar through two registered sale deeds on 17/04/2004, who in turn have sold aforesaid site in favour of C.W. 8 Sri. N. Jayaram on 02/06/2004 and to one Smt. Roopa who is the wife of C.W. 9 Sri. Jayaram Reddy. Since, C.W. 1 has lost the original sale deed of aforesaid sites, her brother C.W. 6 Sri. R.V. Venkatakrishna has lodged complaint before High Grounds Police Station on 23/03/2004. When such being the case, accused having obtained original sale deed of aforesaid sites, created an agreement of sale in his favour said to have been executed on 24/11/2001 by forging the signature of C.W. 1 Smt. Leela Rajgopal, obtained judgment and decree in his favour and got registered the same through the agency of the Court. Therefore, complainant was constrained to approach this court by filing a private complaint. Presently, complainant is reported as dead.
11 C.C.No.15585/2012
14. In this case, material witnesses are C.W. 5 Sri. R.V.N. Kadambi, stated to be the brother and GPA holder of complainant Smt. Leela Rajagopal. C.W. 7 Sri. Kishore Kumar is the purchaser of aforesaid site under two registered sale deeds on 17/04/2004 from Sri. R.V.N. Kadambi, C.W. 8 and one Smt. Roopa are the subsequent purchasers of aforesaid sites, C.W. 9 is the husband of Smt. Roopa, C.W. 13 Sri. B.M. Krishna Murthy finger print expert, C.W. 16 Sri. M.H. Umesh is the I.O. and other witnesses are two sub-registrar officers who have spoken about issuing of certified copies of the registered sale deeds involved in this case, one police official who has registered FIR ...etc.,
15. C.W. 1 Smt. Leela Rajgopal is reported as dead. Hence, her evidence has been dispensed with. Similarly, the evidence of C.W. 4 Sri. S.R. Rajgopal who is the husband of the complainant, who claims himself to be a mentally sick person. As such, the prosecution has filed an application under Section 118 of the Indian Evidence Act, to drop him from deposing evidence. Accordingly, C.W. 4 has been dropped from deposing evidence as he was unable 12 C.C.No.15585/2012 to understand the questions put to him and was unable to give rational answers to those questions.
16. In addition, C.W. 6 Sri. R.V. Venkatakrishna who was the brother of complainant Smt. Leela Rajgopal and C.W. 5 Sri. R.V.N. Kadambi is also reported as dead. Hence, he has been dropped. One Sri. Venkataramanappa C.W. 12 has spoken about forwarding of documents to the Finger Print Unit for the purpose of examination which is not in dispute. Similarly, C.W. 15 Sri. Siddaraju has spoken about registering of FIR on the basis of the referral order made by this court and the same is also not a disputed fact.
17. One Sri. Srinivas C.W. 3 has spoken about obtaining the thumb impression and model signatures of C.W. 1 Smt. Leela Rajgopal and also recording of further statement of C.W. 1 in connection with obtaining thumb impression and her signature.
18. C.W. 2 Sri. B. Venkatesh and C.W. 14 Sri. Prabhakar are the senior Sub-registrar officers have spoken about issuing of original registered sale deeds in respect of aforesaid site property in favour of C.W. 7, 8, Smt. Roopa and also in favour of accused. C.W. 10 Sri. Puttaraju who has spoken about obtaining the finger prints of 13 C.C.No.15585/2012 accused. As such, material witnesses in this case are C.W. 6 Sri. R.V.N. Kadambi, C.W. 7 Sri. Kishore Kumar, C.W. 13 Finger Print Expert Sri. B.N. Krishna Murthy, C.W. 3 Sri. Srinivas, C.W. 8 Sri. N. Jayaram, C.W. 9 Sri. Jayarama Reddy and C.W. 16 I.O.
19. Admittedly, C.W. 1 Smt. Leela Rajgopal and C.W. 5 Sri. R.V.N. Kadambi and C.W. 6 Sri. R.V. Venkatakrishna are sister and brothers. Presently, Smt. Leela Rajgopal is no more and it has been reported before commencing of her evidence.
20. In the complaint, as stated above, it is alleged that, accused having taken undue advantage of missing of original sale deed of Smt. Leela Rajgopal in respect of site No.55 and 56 of Chikkabettahalli, created an agreement of sale dated 24/11/2001, by forging her signature and on the strength of the same, obtained judgment and decree of specific performance of contract in his favour. Accordingly, obtained a registered sale deed in respect of aforesaid site properties through an agency of the court on 02/06/2008.
21. In this case, earlier ownership of aforesaid sites by Smt. Leela Rajgopal is not in dispute. From the arguments of both 14 C.C.No.15585/2012 sides, it is brought to the court notice that, at present subsequent purchasers have preferred an appeal before Hon'ble High Court of Karnataka against the judgment and decree of specific performance of contract in favour of accused.
22. In addition, alleged sale agreement was in the year 2001 and sale deed in favour of the accused was in the year 2008. Whereas, the GPA said to have been executed in favour of C.W. 5 Sri. R.V.N. Kadambi was on 13/02/2004 and the sale deeds in favour of C.W. 7, 8 and C.W. 9's wife are on 17/04/2004, 10/05/2004 and 02/06/2004. The contents of private complaint which is marked at Ex.P.7 though speaks about the story of absolute ownership of C.W. 1 in respect of site No.55 and 56 of Chikkabettahalli, measuring 60x40 feet and subsequent transfer in favour of C.W. 7 through a registered sale deed on the strength of the GPA by C.W. 5 and also another two sale transactions in favour of C.W. 8 and one Smt. Roopa by C.W. 7, by alleging that, accused came near the properties of Smt. Roopa and Sri. Jayaram i.e. C.W. 8 on 11/05/2011 claiming himself to be the owner of the aforesaid properties on the strength of an ex-parte judgment and decree along with registered 15 C.C.No.15585/2012 sale deed and when the same was questioned, they were abused in filthy language with dire consequences, this court has taken cognizance in respect of the offences punishable under Sections 465, 468, 471 and 420 of IPC.
23. In this backdrop, it is necessary to go through the evidence of all the material witnesses. Among them, C.W. 5 Sri. R.V.N. Kadambi is the first who has spoken about purchasing of said site by his sister C.W. 1 and execution of un registered GPA in his favour by his sister for the purpose of selling the said sites. In his evidence, he has clearly stated that, all the original documents pertaining to the aforesaid properties were kept with his brother Sri. R.V. Venkatakrishna by C.W. 1 and it is thereafter, C.W. 1 executed un registered GPA in his favour for the purpose of selling it to C.W. 7 Sri. Kishore Kumar. Accordingly, he had executed an agreement of sale in favour of C.W. 7 Sri. Kishore Kumar on 01/03/2004 and executed registered sale deed on 17/04/2004 through two different sale deeds. This witness has further spoken about missing of the original sale deed pertaining to this property and its public notice through two news papers in the known language like Kannada and 16 C.C.No.15585/2012 English along with complaint before High Grounds Police Station. This witness has identified the GPA executed in his favour. This witness has not identified the accused before this court and stated that his sister has not entered into any sale transaction with the accused. In his cross-examination, he has clearly stated that, he has not seen any complaint and paper advertisement given in connection with the theft of registered sale deed of Smt. Leela Rajagopal. Even this witness is not aware of the contents of private complaint of this case.
24. According to the prosecution, P.W. 2 Sri. R.V.N. Kadambi has denied the execution of sale agreement in favour of accused by his sister and admitted the signatures found in Ex.P.1 i.e. GPA of Smt. Leela Rajagopal in his favour are original signatures and are not tallying with the signature which is found in the alleged forged sale agreement i.e. Ex.P.10 said to have been executed in favour of accused viz., Sangamesh Havannanavar. From the evidence of P.W. 2, it can be noticed that, another brother of C.W. 1 i.e. C.W. 6 Sri. Venkatakrishna was in possession of original registered sale deed dated 22/01/1990 and he had lodged complaint before High Grounds Police Station about missing of original sale deed and also 17 C.C.No.15585/2012 given two paper advertisement in the known language of Kannada and English. In support of these two contentions, no documents are forth coming from the prosecution papers.
25. Another witness Sri. Kishore Kumar who is examined as P.W. 3, has deposed that, he was the purchaser of site No.55 and 56 of Chikkabettahalli from Sri. R.V.N. Kadambi who sold the same on the strength of an un registered GPA, he has deposed that, while purchasing the aforesaid property, he came to know that, original sale deed of aforesaid site property were missing and as there were police complaint and paper publications. As such, he had obtained encumbrance certificates and the same were standing in the name of C.W. 1 Smt. Leela Rajagopa. He was attacked on the basis of encumbrance certificates and the same was denied by him stating that, he has not seen the name of the accused in the encumbrance from the year 2001. This witness has further deposed that, sale of aforesaid sites in favour of one Jayaram i.e. C.W. 8 and Smt. Roopa in the month of May and June 2004. These two documents reveals the fact that, the sale deed in favour of C.W. 7 Sri. Kishore Kumar and the subsequent sale deed in favour of C.W. 8 Sri. Jayaram and 18 C.C.No.15585/2012 Smt. Roopa are all done within in a span of one and half months and there is no satisfactory explanation has been offered by the prosecution for this kind of repeated sale deed in favour of one another during very short period.
26. It is the arguments of the learned Sr. Asst. Public Prosecutor that, door number mentioned in the original sale deed of complainant dated 22/01/1990 has been tampered by overwriting as No.8 and thereby making it as 874. The execution of sale deed in favour of complainant on 22/01/1990 by its earlier vendor is not in dispute. That means to say that the original sale deed dated 22/01/1990 is an admitted document, whereas learned Sr. Asst. Public Prosecutor canvassed that, complainant was not residing in the address mentioned in the sale agreement at the time of execution of sale deed through the agency of the Court. Admittedly, sale deed in favour of the accused has been done through the agency of the Court and not by the complainant or by her any GPA holders. Under the circumstances, it is quite natural that the address mentioned in the sale agreement will be shown as the address of the complainant 19 C.C.No.15585/2012 in the sale deed. Therefore, such a defense of the prosecution has no force.
27. One Sri. N. Jayaram is examined as P.W. 4 on behalf of the prosecution and he claims to be one of the purchaser of site No.55 on 10/05/2004 from C.W. 7 Sri. Kishore Kumar. According to him, after the purchase of aforesaid site, he was put in possession of the aforesaid site and the same was disturbed by the accused in May 2011 by showing the copy of judgment and decree passed in O.S. No.17336/2005. This witness has deposed that, accused has concocted a sale agreement in his favour. As such, he has preferred an appeal against the Judgment of Civil Court. During his cross- examination he has admitted that, he has seen and verified the original sale deed of complainant Smt. Leela Rajagopal, GPA by the complainant in favour of Sri. R.V.N. Kadambi, Xerox copy of the mother deed in respect of aforesaid disputed property and also encumbrance certificates in the name of Smt. Leela Rajagopal from 2001 till 2004. At this stage, learned counsel for the accused has posed a question to the effect that, encumbrance certificate in respect of disputed property from 2001 till 2004 has been in the 20 C.C.No.15585/2012 name of accused and the same has been denied by this witness. A suggestion has been put to this witness that, in order to harass the accused, three sale transactions have been taken place within a span of one and half months by C.W. 5, 7, C.W. 8 along with Smt. Roopa and the same was denied.
28. One more material witness is C.W. 9 Sri. Jayarama Reddy and he is duly examined as P.W. 5. This witness is the husband of Smt. Roopa who is the subsequent purchaser of site No.56 from Sri. Kishore Kumar on 06/02/2004 through a registered sale deed. Surprisingly, Smt. Roopa has not been cited as witness in this case. On the other hand, based on one GPA executed by Smt. Roopa, her husband is cited as witness and this P.W. 5 has spoken about the execution of registered sale deed in favour of his wife from Sri. Kishore Kumar who had purchased said site from one Sri. R.V.N. Kadambi on the strength of GPA said to have been executed in his favour by complainant Smt. Leela Rajagopal. This witness has also spoken similar to that of C.W. 8 Sri. N. Jayaram by saying that, after purchase, his wife has been in peaceful possession and enjoyment of the aforesaid site No.56 of Chikkabettahalli and she was disturbed by 21 C.C.No.15585/2012 the accused upon furnishing copy of judgment and decree passed in O.S. No. 17336/2005. It is specifically stated that, accused herein has concocted the sale agreement and obtained judgment in his favour on the strength of a sale agreement by the civil court. Even in his cross-examination this witness submits that, he has seen encumbrance certificates from 2001 till 2004 in respect of the disputed property and he is ready to furnish the same before the court. This witness has pleaded his ignorance about execution of GPA in favour of C.W. 5 Sri. R.V.N. Kadambi and also relationship between C.W. 5 and complainant Smt. Leela Rajagopal by saying that, he has not seen them.
29. The evidence of this witness is similar to the evidence of P.W. 3 Sri. Kishore Kumar. Presently, the encumbrance certificate for the year 2001 till 2018 are available before this court and have been confronted through P.W. 5 one Sri. Jayaram Reddy and these encumbrance certificates reveals the fact that, from 1-04-2004 to 21-02-2018 and from 01-04-2004 till 12-02-2017, they reflects the name of accused herein. From the evidence of this witness it can also 22 C.C.No.15585/2012 be noticed that, he has preferred an appeal against the judgment and decree of civil suit passed in favour of accused.
30. It is noticed that, evidence of this witness was recorded on 08/09/2014 and after lapse of so many years that too on 02/04/2018 he is once again examined by filing necessary application. At that time, this witness has furnished certified copy of the judgment and decree of O.S. No.4799/2011 which was filed by his wife Smt. Roopa against accused for declaration and permanent injunction in respect of site No.56 of Chikkabettahalli and there is a judgment and decree in her favour in respect of site No.56, on perusal, there is no discussion on sale agreement and there is no effort to prove the signature of complainant herein allegedly forged by the accused. In addition, there is no expert opinion in respect of disputed signature of complainant with the admitted signature and thumb impression of complainant as well as accused herein. Therefore, production of this judgment and decree will not help the prosecution to attract allegation of an offence punishable under Section 465 of IPC as against accused. On the contrary, in this case, there is a handwriting expert opinion which denies the case of 23 C.C.No.15585/2012 prosecution in respect of forgery. Moreover, the said suit has not been contested by the accused. It is submitted by the learned counsel for the accused that, the aforesaid judgment and decree has already been questioned before appellate court. Three encumbrance certificates for the year 1989-2004 which reflects the name of one Smt. Leela Rajagopal and name of C.W. 8 Sri. N. Jayaram for the year 2004 to 2012, likewise name of Smt. Roopa from 01/04/2004 till 2011. Ex.P.23 is the one such encumbrance certificate which is reflecting the name of accused herein from the year 2001 to 2004. This Ex.P.23 falsifies the evidence of P.W. 4 Sri. Jayaram and P.W. 5 Sri. Jayarama Reddy to the effect that, they have seen the encumbrance certificates in the name of Smt. Leela Rajagopal for the year 2001 till 2004. The production of this document by the prosecution itself reveals the fact that the name of accused was reflecting in the encumbrance certificates from the year 2001 till 2004. Under the circumstances, the evidence of P.W. 4 Sri. Jayaram and P.W. 5 Sri. Jayarama Reddy to the effect that, they have purchased site No.55 and 56 by verifying all the original documents in the name of original owner i.e. complainant Smt. Leela Rajagopal, 24 C.C.No.15585/2012 encumbrance certificates appears to be false. This witness has tried to furnish the Katha extract issued in his favour and also in favour of others which is not required.
31. This witness has been cross-examined at length. During his cross-examination he has admitted the fact that, he has not lodged any complaint in respect of alleged galata said to have been made by the accused in his site No.56. This witness also stated that, he has not seen any police complaint said to have been lodged before High Ground Police Station, acknowledgment and also paper advertisement in respect of missing of the original documents. All these witnesses says that, they have seen encumbrance certificates from 2001 till 2004 in the name of Smt. Leela Rajagopal, whereas their own documents speaks that, during aforesaid period, encumbrance certificates in respect of site No.55 and 56 of Chikkabettahalli were reflecting the name of accused herein and the same has been confronted by learned counsel for the accused through this witness which can be seen at Ex.D.1 to D.3. This witness is also confronted with tax paid receipts in respect of 25 C.C.No.15585/2012 aforesaid site No.55 and 56, paid by the accused herein and the same can be noticed at Ex.D.4 and D.5.
32. More importantly, from the evidence of this witness it can be noticed that, he had filed miscellaneous petition No.25131/2014 for setting aside an ex-parte judgment and decree in favour of accused herein and he has also admitted that, the said petition was dismissed against which, he has preferred an appeal before Hon'ble High Court of Karnataka.
33. From the evidence of this witness three factors can be noticed that, he has preferred an appeal before Hon'ble High Court of Karnataka for setting aside of dismissal order in respect of C.Misc. Petition No. 25131/2014 which was filed for setting aside of ex-parte judgment and decree passed in favour of accused. Secondly, he has admitted the fact that, from 2001 till 2004 and also till 2017-18 the encumbrance certificates in respect of site No.55 and 56 of Chikkabettahalli village are reflecting the name of accused herein. If these witnesses have seen encumbrance certificate in the name of C.W. 1 for the year 2001 to 2004, why I.O. has not seized during investigation under mahazar, is kept under dark and remained 26 C.C.No.15585/2012 unanswered. Thirdly, though he admits that, he has verified all the original documents including the complaint and public notice through paper publication, the said documents are not forth coming from the prosecution papers.
34. Under the circumstances, from the evidence of above three witnesses it is very difficult to arrive at the conclusion that, there is a forgery of signature and thumb impression of C.W. 1 Smt. Leela Rajagopal on the alleged sale agreement dated 24/11/2001 by the accused through impersonation and thereby cheated the complainant by obtaining a judgment and decree in his favour on the strength of the concocted sale agreement. Therefore, it is necessary to go through the report of handwriting expert which is marked at Ex.P.9 to 14 and also the evidence of handwriting expert who has given the report as per Ex.P.9.
35. Report of handwriting expert says that, there is no tally of disputed signature of complainant with the admitted signature and thumb impression of complainant Smt. Leela Rajagopal as well as accused herein. In this background, it is necessary to go through the evidence of C.W. 13 Sri. B.M. Krishna Murthy who is examined as 27 C.C.No.15585/2012 P.W. 8. In the evidence P.W. 8 has deposed that, he has been in finger print bureau from 2005 by obtaining a training in All India Board for Examination of Finger Print Expert, Delhi. He has deposed in detail the manner in which he has conducted the finger print examination of signature and thumb impression of accused as well as the complainant Smt. Leela Rajagopal along with supportive documents which are marked at Ex.P.11 to P.14.
36. It can be noticed that, P.W. 8 has followed the due procedure to conduct handwriting and thumb impression examination. He has narrated the procedures in detail. In his chief- examination, he has clearly stated that, there is no tally of disputed signatures with the admitted signatures of accused as well as complainant herein. He has specifically stated that, signature of complainant in the sale agreement as Leela.R was identified as D-1 and the admitted thumb impression of accused is identified as T-1 to T-4. He has deposed clearly that, signature found in the sale agreement which is identified as D-1 is not tallying with the admitted thumb impression of accused which is marked as T-2. 28 C.C.No.15585/2012
37. From the evidence of finger print expert it can be noticed that, I.O. has obtained specimen signature as well as thumb impression of Smt. Leela Rajagopal by sending one of his official to her place. From his cross-examination it can be noticed that, he has given expert opinion nearly in 45 cases and in the cross-examination he has asserted that, there is no tally of disputed signature of complainant with the admitted signature as well as the thumb impression of accused. The evidence of hand writing expert is supported by the documents which says that, there is no tally of disputed signature of complainant with the specimen signature and thumb impression of the accused herein.
38. Having raised a serious objection on the report of handwriting expert, the learned Sr. Asst. Public Prosecutor has relied on the following decisions to falsify the evidence of handwriting expert.
a) 2009 AIR SCW 7308, between Ramesh Chandra Agarwal Vs. Regency Hospital Ltd., and others, wherein the Hon'ble Apex Court has held that:-
"(a) S.45- Expert evidence-
admissibility- need to hear an expert 29 C.C.No.15585/2012 opinion is firth and foremost requirement".
"(b) S.45- Expert witness-
Reliability- It has to be shown that he has made a special study of subject or acquired special experience therein".
b) 1999 CRL.L.J 4294, between State of H.P. Vs. Jail Lal and others, wherein the Hon'ble Apex Court has held that:-
" Expert evidence - must show that expert is skilled and has a adequate knowledge of the subject".
The ratios laid down in the aforesaid decisions are taken note of and it is not applicable to the present case on hand, because, the handwriting expert is a trained officer from All India Board for Examination of Finger Print Expert, Delhi, having passed the required examination in the year 2005 and also has a rich experience over a period and so far he has given 45 reports. From the evidence and also from the supportive documents in connection with report of handwriting expert, it can be noticed that, expert herein being a qualified and knowledgeable, having a hold on the subject, has compared the disputed signature with the admitted handwriting and thumb impression of accused herein and arrived at such a conclusion. 30 C.C.No.15585/2012
c) In 2005 CRL.L.J 1322, Jammu and Kashmir High court between Raj Kumar Vs. State, wherein the Hon'ble High Court of Jammu and Kashmir has held that:-
" Expert - report proved by him-
not necessary that it should be corroborated by his statement before court for taking it into consideration".
d) (2003) 3 SCC 583, between Lalit Popli Vs. Canara Bank and others, wherein the Hon'ble Apex Court has held that:-
" B:- Ss.45, 47 and 73- Handwriting expert, opinion of- Comparison of writings- Irrespective of opinion of the handwriting expert, court can satisfy itself by comparing the admitted writing with disputed writing and come to its own conclusion- It is for the court to decide whether evidence of the expert needs corroboration or not- Evidence of the handwriting expert need not be invariably corroborated".
e) 1973 Crl.L.J 1143, between Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma and others, wherein the Hon'ble High Court of Delhi has observed that:-
" Expert evidence- Evidence of handwriting expert- Brief Note:- (B):-
The evidence of handwriting expert, unlike that of a fingerprint expert, is 31 C.C.No.15585/2012 generally of a frail character and its fallibilities have been quite often noticed. The court should, therefore, be wary to give too much weight to the evidence of handwriting expert. Conclusions based upon comparison of handwriting must at best be indecisive and yield to the positive evidence in the case"
39. The principles laid down in the afore quoted decisions are taken note of and the same are not applicable to the present case on hand as this court is not exclusively relying on the expert opinion. It is also observed by the Hon'ble Apex court in Lalit Popli Vs. Canara Bank and others that, "evidence of handwriting expert need not be invariably corroborated". Here in this case, admittedly there is a civil disputes pending in respect of site No.55 and 56 of Chikkabettahalli before Hon'ble High Court of Karnataka. From the evidence of C.W. 8 and 9, it can be noticed that, there are parallel civil proceedings in respect of aforesaid sites. There is no substantial evidence and documents in respect of forgery of disputed signature of complainant Smt. Leela Rajagopal. Under the circumstances, though the report is not conclusive one, it can be considered to corroborate such other circumstantial and documentary evidences. 32 C.C.No.15585/2012
40. Lastly, I.O. by name Sri. M.H. Umesh is examined as P.W. 12, has spoken about the investigation conducted by him by deposing that, he has written letters to jurisdictional sub-registrars to obtain the certified copy of the sale agreements, sale deeds involved in this case and also spoken about recording of complainant's statement through one of its official in Hubli in connection with obtaining of her specimen signature and thumb impressions. This I.O. in detail has deposed about the investigation conducted by him in respect of mahazar, recording statements and also forwarding the disputed and admitted signatures and thumb impressions of complainant and accused to obtain an opinion of an expert. In his cross-examination he has admitted the fact that, he has not examined any Sub-registrar about the registration of sale agreement executed in favour of accused on 24/11/2001 and also enquiring the witnesses of the said sale agreement. It is admitted that, he has not examined defendant of O.S. No.17336/2015 i.e. complainant herein in respect of the address shown in the cause title of the said suit. This I.O. has clearly stated that, he has not conducted any inquiry in respect of missing of original registered sale deeds of C.W. 1 also 33 C.C.No.15585/2012 complaint lodged before High Grounds Police Station in that connection and also about public notice through paper advertisement in connection with theft/missing of original sale deed. This I.O. is attacked on the procedural aspect to the effect that, he has not conducted any mahazar by obtaining the signature and thumb impression of complainant at Hubli through his colleague. As per the evidence of I.O. he has not collected any encumbrance certificate much earlier to the year 2001 and even after the year 2001. At last, he has admitted the fact that, he has not arrived at any conclusion about the alleged act of forgery by the accused while submitting final report.
41. From the evidence of I.O., it can be noticed that, he himself is not clear whether accused herein has committed an offence of forgery and thereby cheated the complainant.
42. The entire evidence of all the witnesses discloses the facts that, there are civil litigations pending in respect of site No.55 and
56. Admittedly, judgment and decree obtained is an ex-parte decree and C.W. 9 Sri. Jayarama Reddy has questioned it in an appeal before Hon'ble High Court of Karnataka. According to the 34 C.C.No.15585/2012 prosecution, accused has some how got the original documents into his custody. Admittedly, the original sale deed of complainant dated 22/01/1990 was handed over to the custody of her brother Sri. R.V. Venkatakrishna. When this original document was missing or subjected to theft is not forth coming from the available materials on record. According to the evidence of Sri. R.V. N. Kadambi, Kishore Kumar, N. Jayram and Jayarama Reddy, complainant's brother Sri. R.V. Venkatakrishna had lodged complaint before High Grounds Police Station about missing of the original sale deed of his sister on 23/03/2004 and according to the prosecution there was a public notice through paper publication in respect of missing of the said registered sale deed, where as the alleged sale agreement dates back to 24/11/2001, therefore it is not known when the original sale deed of Smt. Leela Rajagopa was misplaced or subjected to theft. Except oral evidence, no corroborative documentary evidences are placed to support the version of the prosecution and even no plausible explanation has been offered by the prosecution in this connection.
35 C.C.No.15585/2012
43. Admittedly, alleged sale agreement in favour of accused was on 24/11/2001, this GPA in favour of Sri. R.V. N. Kadambi i.e. broth40er of complainant was on 13/02/2004, so called complaint lodged before High Grounds Police Station was on 23/03/2004 and execution of sale deed to C.W. 7 Sri. Kishore Kumar and subsequent sale transactions in favour of C.W. 8 and Smt. Roopa were all in the year 2004, i.e. after alleged execution of sale agreement and present complaint is presented before this court is in the year 2011, that is to say, the complainant herein has filed private complaint before this court in the year 2011 that too after judgment and decree of specific performance in favour of accused in the year 2008. No satisfactory explanation has been offered by the prosecution for not approaching the court at the earliest. Under the circumstances, missing or theft of alleged original registered sale deed in favour of complainant appears to be doubtful.
44. In so far as execution of sale deed in favour of accused on the strength of a sale agreement, is still under question before the Civil Courts and it is subject to the result of the civil litigations. In addition, the evidence of handwriting expert is not supporting the 36 C.C.No.15585/2012 case of prosecution in so far as forgery of alleged sale agreement dated 24/11/2001. The expert has clearly opined that, there is no tally of disputed signature with the admitted signature and thumb impression of accused herein. Even according to the documents furnished by the prosecution which are marked at Ex.P.23 and the documents confronted through C.W. 9 Jayarama Reddy i.e. Ex.D.1 to D.3 are reflecting the name of accused from the date of execution of the sale agreement i.e. from the year 2001 till 2004. Another point to be noticed is that, the so called un registered GPA in favour of Sri. R.V.N. Kadambi, execution of registered sale deed in favour of Sri. Kishore Kumar, Jayaram and Smt. Roopa, are all after the alleged sale agreement i.e. in the year 2004. The prosecution has failed to falsify the encumbrance certificates which are reflecting the name of accused Sangamesha Havannavar from the year 2001 to 2018. Even the tax paid receipts as on the year 2016-17 and 2017-18 have been paid by the accused only and the said documents are confronted through C.W. 9 Sri. Jayarama Reddy.
45. When such being the case, it would not be proper to arrive at the conclusion that, the alleged sale agreement which is marked at 37 C.C.No.15585/2012 Ex.P.10 is a forged document. The learned Sr. Asst. Public Prosecutor has relied on a decision to establish the fact that, accused has committed an offence of forgery which is reported in 1997 Crl.L.J 2509, Bombay High Court between Bharat Hiralal Sheth and others Vs. Jaysin Amarinh Sampat and another, wherein it is held that "S.464- Forgery of document- Is possible even if accused himself is the author and signatory of document".
Since the facts and circumstances of the said case is entirely different from the present case on hand, the same does not come to the aid of the prosecution case.
46. In 1967 Crl.L.J. 1717, by Hon'ble Gujarat High Court, between Aher Samat Bhima Vs. State of Gujarat it is observed that " making false document-Essentials- In order to make a false document the date put on the document must differ from the date on which the document has been prepared- Counterfoil prepared on a certain date challenged on the ground that the date was not the one on which payment was made- Such document cannot be said to be a 38 C.C.No.15585/2012 false document within the meaning of S.464- Prosecution under Section 467 of the Code is unwarranted- Appropriate action is to frame charge under Section 477A".
47. Since the prosecution has not satisfactorily established the act of forgery of sale agreement with the supportive documents and making false documents, thereby the decision afore quoted cannot be applicable to the present case on hand.
48. In addition, the litigations in respect of afore mentioned site No.55 and 56 are still pending for consideration and the sale agreement which has been established before the Civil Court and the sale deed in pursuance of the judgment and decree of the Civil Court are also still under consideration. Under the circumstances, the oral evidence in respect of missing of original registered sale deed is not coupled with corroborative documents viz., complaint before High Grounds Police Station, NCR as well as public notice through paper publication.
49. That apart, name of accused from the year 2001 till this day in the encumbrance certificate in respect of site No.55 and 56 falsifies the version of the prosecution to the effect that, C.W. 7 Sri. 39 C.C.No.15585/2012 Kishore Kumar, C.W. 8 Sri. N. Jayaram and C.W. 9 Sri. Jayarama Reddy's wife Smt. Roopa have purchased aforesaid sites by looking into the encumbrance certificates which were in the name of complainant Smt. Leela Rajagopal from the year 2001 to 2004. Even the delay in filing the private complaint i.e. after three years of judgment and decree in favour of accused has not been satisfactorily explained before this court. Since the allegations against accused are of civil in nature and those civil disputes are still pending for consideration, it would not be proper to arrive at a conclusion that, accused has committed an offence of forgery and thereby cheated the complainant.
50. More importantly, the oral evidence of complainant in respect of forgery is not corroborated by the report of handwriting expert which says that, the signature of the complainant found in the alleged forged sale agreement is not tallying with the admitted signature and thumb impression of complainant herein. Under the circumstances, oral and documentary evidences of prosecution cannot be considered to hold accused as guilty minded. Therefore, the prosecution has miserably failed to establish the guilt against 40 C.C.No.15585/2012 accused beyond all reasonable doubt with cogent, convincing and corroborative evidence. Therefore, above points No.1 to 4 are answered in the Negative.
51.Point No.5: In view of the negative findings on the above points No.1 to 4, I proceed to pass the following:-
ORDER Acting U/s.248(1) of Cr.P.C., accused found not guilty and acquitted of the offences punishable U/s. 465, 468, 471 and 420 of IPC.
The bail & bail bond of the accused and surety shall stands cancelled.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 30th day of June 2018).
(Mala N.D) XLIV Addl.C.M.M., B'lore.41 C.C.No.15585/2012
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W. 1: S.R. Rajgopal P.W. 2: R.V.N. Kadambi P.W. 3: Kishore Kumar P.W. 4: N. Jayaram P.W. 5: Jayaram Reddy.N. P.W. 6: Siddaraju P.W. 7: Venkataramanappa P.W. 8 : B.M. Krishna Murthy P.W. 9 : Srinivas P.W. 10 : Prabhakar P.W. 11 : Puttaraju.H.R. P.W. 12 : M.H. Umesh
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Certified copy of GPA Ex.P.1(a to c) : Signature of sister of P.W. 1 Ex.P.1(d) : Signature of P.W. 1 Ex.P. 2&3 : Notarized copies of sale deeds Ex.P.2(a to h) : Signatures of P.W. 1 Ex.P.3(a to g) : Signatures of P.W. 1 Ex.P.4 : Notarized copy of sale deed executed by original owner in favour of sister of P.W. 1 Ex.P.5 : Notarized copy of sale deed dated 10/05/2004 Ex.P.5(a) : Signature of P.W. 4 Ex.P.6 : Certified copy of the sale deed dated 02/06/2004 Ex.P.7 : Private complaint Ex.P.7(a) : Signature of P.W. 6 Ex.P.8 : FIR Ex.P.8(a) : Signature of P.W. 6 Ex.P.9 : Acknowledgement letter for having handover of three sealed covers Ex.P.10 : Original sale agreement dated 24/11/2001 Ex.P.10(a) : Thumb impression marked in red ink Ex.P.11 : Report Ex.P.11(a) : Signature of P.W. 8 42 C.C.No.15585/2012 Ex.P.12 : Opinion given by P.W. 8 Ex.P.12(a) : Signature of P.W. 8 Ex.P.13 : Specimen thumb impressions Ex.P.13(a) : Signature of P.W. 8 Ex.P.13(b) : Signature of P.W. 11 Ex.P.14 : Specimen signatures of Smt. Leela Ex.P.14(a) : Signature of P.W. 8 Ex.P.14(b to e) : Specimen thumb impression of complainant Ex.P.14(f to i) : Signatures of P.W. 9 Ex.P.15 : Annexure-I Ex.P.15(a) : Signature of P.W. 8 Ex.P.16 : Direction letter Ex.P.16(a) : Signature of P.W. 9 Ex.P.16(b) : Signature of P.W. 12 Ex.P.17 : Further statement of complainant Smt. Leela Rajgopal Ex.P.17(a) : Signature of P.W. 9 Ex.P.18 : Requisition dated 1805/2012 Ex.P.18(a) : Signature of P.W. 10 Ex.P.19 : Copy of court sale deed dated 24/01/2011 Ex.P.19(a) : Signature of P.W. 10 Ex.P.20 : Certified copy of judgment and decree passed in O.S. No.4700/2011 Ex.P.21 to 23 : Encumbrance certificates Ex.P.24 & 25 : Certified copy of endorsement and application Ex.P.26 : Copy of demand register extract
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE Ex.D.1 to 3 : Notarized copies of encumbrance certificates Ex.D.4 & 5 : Copies of tax paid receipts
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (Mala N.D) XLIV Addl.C.M.M., B'lore.43 C.C.No.15585/2012
Judgment pronounced in Open
Court vide separate:-
ORDER
Acting U/s.248(1) of Cr.P.C., accused
found not guilty and acquitted of the offences punishable U/s. 465, 468, 471 and 420 of IPC.
The bail & bail bond of the accused and surety shall stands cancelled.
(Mala N.D) XLIV Addl.C.M.M., B'lore.
44 C.C.No.15585/2012