Tripura High Court
Makhan Malakar vs The State Of Tripura on 19 December, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
CRL. REV. P. 66 of 2014
1. Makhan Malakar
son of late Tekai Ram Malakar
2. Md. Giyas Uddin Choudhury
son of late Abdul Sattar Choudhury
3. Md. Nayam Uddin Choudhury
son of late Abdul Sattar Choudhury
4. Mst. Chapia Begam Choudhury
daughter of late Abdul Sattar Choudhury
5. Emauddin Choudhury
son of late Abdul Jabbar Choudhury
6. Md. Abdul Haque Choudhury
son of late Bajid Ali Choudhury
- All the persons are residents of Baghan,
P.S. Churaibari, District- North Tripura
... Petitioners
- Versus -
1. The State of Tripura,
represented by the Secretary,
Home Department, Government of Tripura,
Agartala, West Tripura
2. Samas Uddin Choudhury
son of late Abdul Sattar Choudhury
resident of Baghan, P.S. Churaibari, District- North Tripura
... Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. S. Kar Bhowmik, Advocate
For the respondent : Mr. KN Bhattacharjee,
Sr. Advocate
Ms. S. Chakraborty, Advocate
Date of hearing & delivery
of Judgment and Order : 19.12.2017
Whether fit for reporting : YES
JUDGEMENT AND ORDER (ORAL)
Heard Mr. S. Kar Bhowmik, learned counsel appearing for the petitioner as well as Mr. KN Bhattacharjee, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the respondent. Crl.Rev.P.66 of 2014 Page 1 of 10
2. This is a petition under Section 397 read with Section 401 of the Cr.P.C from the judgment dated 02.07.2014 delivered in Criminal Appeal no. 25 of 2013 by the Additional Sessions Judge, North Tripura, Dharmanagar on reversing the judgment and order of acquittal dated 23.07.2013 delivered in case no. G.R. 263 of 2008 remanding the matter for fresh trial. The petitioners were acquitted by the said order dated 23.07.2013 from the charge that was framed under Sections 468/34 of the IPC..
3. The prosecution was launched based on the written ejahar dated 06.06.2008 where the present petitioners were accused of forging the signature of the respondent no.2, represented by Mr. KN Bhattacharjee, learned senior counsel in the sale deed no. 3396 dated 04.09.1999 contained in Book no. I, Volume no. 24, Page no. 139-140. On the force of the said deed, the share of the respondent no.2 over the land demised in the said deed dated 04.09.1999 was mutated in the record of rights .
4. The land in question, which has been inherited by the respondent no.2 alongwith the accused persons was according to the respondent no.2, was transferred to Makhanlal Malakar, the petitioner no. l in this petition by hatching up a conspiracy. Thereafter, it has been observed that by hatching up a conspiracy. Thereafter, it has been observed that by hatching up a conspiracy the other accused persons, the petitioner no. 2 to the petitioner no.6 had Crl.Rev.P.66 of 2014 Page 2 of 10 executed a sale deed on 24.06.1999 and that was registered, as stated earlier on 04.09.1999. According to the respondent no.2, his name was forged in the said deed. Based on the said ejahar, Churaibari Police Station case no. 24 of 2008 was registered under Section 468/34 of the IPC and was taken up for investigation. The final report under section 173(2) of the Cr.P.C was submitted by charge-sheeting the petitioners. In the course of time, the charge was framed for the said offence to which all the petitioners pleaded innocence and claimed to be tried. The prosecution adduced as many as four witnesses including the complainant who filed the ejahar. After the prosecution evidence was recorded, the accused persons were examined under Section 313 of the Cr.P.C separately when they have denied to have committed any offence chargeable under section 468 of the 1PCA or otherwise.
5. Having examined the evidence, introduced by the Prosecution, the trial Judge by the judgment dated 23.07.2013 acquitted the petitioners holding that the prosecution could not successfully bring home the guilt of the accused persons. Being aggrieved, the respondent no.2 (PW-
l) who lodged the complaint filed an appeal under proviso to section 372 of the Cr.P.C in the court of the Additional Sessions Judge, North Tripura, Dharmanagar, as he then was, being Criminal Appeal no. 25 of 2013. By the impugned judgment dated 02.07.2014, the appeal as filed by the Crl.Rev.P.66 of 2014 Page 3 of 10 respondent no.2 was allowed and the case was remanded for the fresh trial having observed as under:
"7. On going through the record I find that in the lower court record there is a copy of that document and that document shows that appellant Sarnas Uddin Choudhury was shown as seller out of 7 sellers in respect of land measuring 50 satak in respect of old plot no. 4453 and R.S. plot no. 5838 covered in khatian no. 416 holding nos. 536 of mouja- Kadamtala and plot no. 4453 and RS plot no. 5836/6008 covered in Khatian no. 4453 of holding no. 341. Record also shows a copy of finally published Khatian which show that khatian no. 2654 was created in the name of accused Makhan Malakar in respect of RS plot no. 4453 and land was measuring 50 satak. The very question arise if in a particular deed signature of seller was not there then how that land can be mutated basing on that deed. So the very circumstances require proper inquiry by the court also. Informant appellant will be the most affected person by the said deed so he has a right to challenge the very proceeding and in a trial the court should proceed in a manner that it can gain the confidence of the witnesses. It is clear that the police in this case submitted charge sheet without seizing the vital document of this case. It is also clear that prosecution also during inquiry and trial did not take any attempt to procure that document for ends of justice and even ld. Court below also on its own did not try to call for that document for ends of justice. Ultimately result is that it affects the victim appellant during trial of this case. ld. Trial court not only to see the interest of the accused person but also to see the interest of the person aggrieved who has come before the court for justice. So the claim of the victim appellant cannot be disregarded.
8. Iam satisfied that it is a fit case for remand for retrial giving opportunity to the prosecution to procure the original deed in question and to prove that said deed is forged and the prosecution should be given opportunity to bring necessary witnesses including the Sub-Register, Dharmanagar to prove the deed in question.
9. Hence, I remand this case to the ld. lower Court below in setting aside the judgment dated 23.07.13 passed by ld. Sub Divisional Judicial Magistrate, Dharmanagar in connection with GR 263/08 acquitting the accused respondents from the charge u/s 468/34 IPC giving opportunity to the prosecution to prove the deed in question by examining the vital witnesses withheld by the prosecution. Prosecution may be given opportunity to prove or examine the other witnesses if situation considers it necessary. ld. Court below should also exercise its power to bring any witness and to procure the vital document for ends of justice in order to prove the allegation and to exercise its power u/s 165 of the Indian Evidence Act".
6. Mr. Kar Bhowmik, learned counsel appearing for the petitioners has submitted that from the findings returned by the appellate court it would be apparent that the said order of remand has been passed on assumption which does not have its root in the evidence and as such, extraneous in nature. Mr.Kar Bhowmik, learned counsel has particularly made Crl.Rev.P.66 of 2014 Page 4 of 10 reference to the observation made by the appellate court that the very question arises even if in a particular deed signature of the seller was not there that how can that land be mutated basing on that deed? So the very circumstances require proper inquiry by the court also. Mr. Kar Bhowmik, learned counsel has also submitted that mutation has been done wrongly and it does not necessarily presuppose that a deed has been forged unless it has been proved by way of evidence. Since the deed was admittedly registered, it cannot be claimed by the prosecution that they were pushed to a circumstances where they could not produce the deed. The position as admitted, is that the deed was not produced. Mr. Kar Bhowmik, learned counsel further submitted that over that issue, a civil suit was instituted by the complainant which has finally culminated into a second appeal being RSA 48 of 2012. In the said RSA 48 of 2012, this court had occasion to observe that the suit land had included the land of the defendant, but the other co-sharers at the same time can transfer their shares without any hindrance, but that will not be a perfect transfer as the transferee will not have any claim to a particular area of land. It has been recorded that the property was amicably partitioned, but lateron that partition was not accepted by all. It has been observed in the judgment dated 01.07.2016 delivered in RSA 48 of 2012 that "any part of the land of the defendant shall not be made part of the suit land, against which the title has been declared in favour of the plaintiff, the respondent herein. The plaintiff being declared to be the absolute owner of the suit land has right to have the perpetual injunction against the Crl.Rev.P.66 of 2014 Page 5 of 10 defendant in respect of the suit land. Therefore, the defendant is liable to be restrained from interfering with the plaintiff's land which has been acquired by virtue of the said deed [Exhibit-E] in any manner including by creating disturbance or by engagement for possessing the same". The complainant's appeal was dismissed.
Mr. Kar Bhowrnik, learned counsel has further submitted that a copy of the questioned deed was taken into cognizance by the appellate court and in that copy it has been clearly laid down that the complainant refused to sign the said deed whereas the other co-parcener had signed and there was no attempt of forging the signature of the complainant (PW-1). Mr. Kar Bhowmik, learned counsel has further produced the certified copy of the said deed, but at this stage this court cannot take cognizance of the said deed, but from the records, this court has gathered that such entry, as contended by Mr. Kar Bhowmik, learned counsel, is available. Moreover, the complainant in his deposition in the trial has stated as under:
"the said sale of land was made without my knowledge and it is also to be mentioned that the said land is a joint property belonging to myself and some of the a/ps. On 04.09.99 the said Deed was register in the DMN Sub Registry Office by deed No. 3396. Book No.1, Volume No. 24, Page No. 139-
140. On 18.07.05 when the mutation of the said land was tried to be made then I raised my objection in the Sub-Registry Office by getting to know about this fact. But my objection was not taken into account. Thereafter I reported the matter to local people and local level meeting was also held regarding this matter but the a/ps did not attend the said meeting. In the said deed my signature was forged and my thumb impression was also forged by the miscreants. The land in question was in possession of myself. I have also submitted the Xerox copy of the certified copy of the deed and the Xerox copy of the khatian along with my complaint petition".
A photocopy was considered by the appellate court. In the cross examination, PW-1 has further stated that some portion of that land have been bought by Makhan Malakar and the other portion has not been sold and continued to be Crl.Rev.P.66 of 2014 Page 6 of 10 possessed by him. According to him, the accused persons forged his signature and caused damage and loss. Mr. Kar Bhowmik, learned counsel has referred to a series of decisions of the apex court on the limitation of interference in the appeal when is directed against the order of acquittal. From the catena of judgments, Mr. Kar Bhowmik, learned counsel has made a distinction between the ordinary appeal from the judgment of conviction and the appeal from the judgment of acquittal. He has emphasized that unless the appreciation of evidence by the trial court is found to be perverse or in total derogation of the procedural propriety, the appellate court shall not interfere in the decision as appealed against, even if another view is possible. Mr. Kar Bhowmik, learned counsel has raised a specific question that when the prosecution has not raised any objection or reservation that they are deprived of opportunity by the trial court to adduce any evidence or to bring evidence, in such circumstances the appellate court should not direct the re- trial to fill up the lacuna located in this regard. Mr. Kar Bhowmik, learned counsel has relied on a decision of the apex court in Abinash Chandra Bose vs. Bima1 Krishna Sen reported in AIR 1966 SC 1160 where the Apex court had occasion to observe that in a case where there is no complaint that the trial court has not given the prosecution full opportunity to adduce all available evidence in support of their case, the appellate court should not give the direction Crl.Rev.P.66 of 2014 Page 7 of 10 for retrial. Mr. Kar Bhowmik, learned counsel has further submitted that Section 165 of the Evidence Act does not substitute the trial Judge as the prosecutor. His duty is very limited and focused to remove the ambiguity at the time of recording the evidence and that to for unearthing the truth. Finally, Mr. Kar Bhowmik, learned counsel has submitted that there was no proof that the petitioners forged the said title deed dated 04.09.1999 by the accused persons. Even it appears from the note appended to the said title deed that there was no signature of the complainant (PW-1) in the deed, but in the body of the deed his name had appeared as the executants, but no signature of the complainant is subscribed there. The space is left vacant.
7. From the other side, Mr. KN Bhattacharjee, learned senior counsel has submitted that no injustice has been caused to the petitioners as they would get the opportunity to defend their case.
8. One limb of justice is to save the citizen from the prosecution. If the cases are remanded for retrial, the petitioner shall have to go the rigous of the trial again. There cannot be any amount of doubt that the appellate court has competence to order retrial in a case where the failure of justice has occasioned but here it appears that there is no proof of forgery to constitute an offence under Section 468 IPC. Section 468 of the IPC provides that whoever commits forgery, intending that the document or electronic record Crl.Rev.P.66 of 2014 Page 8 of 10 forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. To forgery means, according to section 463 is making a false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
9. Having appreciated the submissions of the learned counsel appearing for the parties, this court is of the view that direction for retrial is entirely unjustifiable as the prosecution had totally failed to produce the document which has been alleged to have been forged. Collectively one's signature cannot be forged. The forging of the signature can only be proved by the evidence, meaning on the aid of the expert forensic the handwriting or signature, in question. There was no attempt by the investigating agency to collect such evidence. The document which has been alleged to have been forged has also not been produced as the evidence. The appellate court after going through a photocopy came to the conclusion and based on the record of right (khatian) that the entry in the khatian in favour of the petitioner no. 1 presupposes the forgery of the document, meaning the title deed in question. This said argument is not at all acceptable. Crl.Rev.P.66 of 2014 Page 9 of 10
A document since was available in the public custody, atleast the pasting of the original document which had been creating under the Pasting Rules could have been placed beyond other alternatives, but the prosecution did not take any steps to produce the said document or direct the accused petitioner no. 1 at any point of time to produce such document. That apart, there was no attempt from the prosecution to compare the handwriting of the accused persons which is available in the admitted records. Thus, this court does not find that the finding of the appellate court, as extracted hereinabove, cannot be sustained in law and accordingly the same is set aside.
10. In the result, the impugned judgment and order of remand is interfered with and quashed. The order of acquittal passed by the Sub Divisional Judicial Magistrate, Dharmanagar, North Tripura is hereby affirmed.
11. With this observation, this petition is allowed to the extent as indicated above.
Send down the LCRs forthwith.
JUDGE Saikat Crl.Rev.P.66 of 2014 Page 10 of 10