Punjab-Haryana High Court
Jagdish Raj Gupta vs State (Union Territory) on 6 August, 2008
Author: T.P.S.Mann
Bench: T.P.S.Mann
Criminal Revision No.93 of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Revision No.93 of 1998
Date of decision: August 06, 2008
Jagdish Raj Gupta
.....PETITIONER
Versus
State (Union Territory), Chandigarh
.....RESPONDENT
CORAM: HON'BLE MR JUSTICE T.P.S.MANN
PRESENT: Mr H.S.Gill, Sr Advocate with
Mr Vivek Goyal, Advocate
for the petitioner.
None for the respondent.
T.P.S.MANN, J.
In relation to forgery and fabrication of five drafts, about which the accused cheated the complainant-Corporation, FIR No. 355 dated 11.4.1980 was registered at Police Station Central, Chandigarh under Sections 420, 467, 468, 471, 380/120B IPC. After completion of the investigation, two challans were presented in the Court against the petitioner and others, first one being Challan No.174/2 (i) pertaining to drafts dated 1.9.1977 and 27.2.1978 for Rs. 85,000/- and 92,000/-, respectively while the second Challan No.174(2)(ii) pertained to drafts dated 29.1.1979, 4.5.1979 and 5.6.1979 for Rs. 90,000/-, 90,000/- and 95,000/-, respectively. In the first challan, the petitioner along with four others was arrayed as accused, while in the second, there were eight Criminal Revision No.93 of 1998 -2- accused in all, including the petitioner. Learned Judicial Magistrate Ist Class, Chandigarh vide judgment dated 2.6.1990, convicted all the accused, including the petitioner under Sections 420, 471, 380, 120B IPC and sentenced them to undergo RI for a period of two years each, besides paying fine also. Aggrieved of the same, the petitioner and his seven co- convicts filed their separate appeals which came to be heard and decided by learned Additional Sessions Judge, Chandigarh on 10.7.1995, when all the cases were remitted to the learned trial Court for the reason that the relevant pieces of evidence had not been put to the accused when they were examined under Section 313 Cr.P.C and, therefore, they did not get an opportunity to explain the same. The observations made by learned Additional Sessions Judge, Chandigarh are as under:
40.Plainly the statutory words of Section 313 Cr.P.C enjoin the court to put all the relevant pieces of evidence led by the prosecution to the accused so that the latter may get an opportunity to explain the same.
The accused has to be given an opportunity to explain the incriminating circumstances. The said circumstances have to be put to the accused in succinct form. This provision makes its obligatory for a Court to inform the accused about incriminating circumstances to elicit explanation and to have possible defence of the accused. The narration of evidence in mechanical fashion does not serve the purpose. It is the function of the Court to call upon the accused's attention to vital points. The question put to accused while recording his statement under Section 313 Cr.P.C must be such as to invite concentration of his attention to a single point to which his answer is required.
Criminal Revision No.93 of 1998 -3-
41.To the contrary clubbing several material facts one long question has been put to the accused, instead of asking separate, specific and pointed questions on each material and distinct aspect of the matter on the vital aspects, incriminating the accused in evidence of the prosecution.
42.Instead of single rolled up questions, plurality of separate questions ought to have been put to each of the accused separately putting distinct incriminating material coming against him to get separate and distinct explanation.
43.The statement of the accused are very general, casual and have mixed up significant with insignificant data and preventing the accused from properly and fully comprehending the import and effect of each material fact and aspect of the prosecution case. Having an incriminating content "specific" grasp of the accused in contradiction to "general grasp" was required which could have been feasible only by putting short and specific questions separately, of each vital and incriminating aspect of evidence. In such rolled up questions the accused have clearly not been able to put their defence properly. In such questions even the most educated accused would inevitably tend to gloss over the individual parts and thereby necessary and finer points may be missed resulting in absence of pointed, proper and detailed reply to each particular aspect. In questions mixed up together some answer is not possible. This is what has happened in this case.
44. Examination of the accused "generally on the case" Criminal Revision No.93 of 1998 -4-
does not mean putting of the questions of significant and insignificant details generally and casually. At times these questions are having been no foundations in the evidence and have been mindlessly put to the accused. There is no certification of these questions having been put to the accused, much less that the accused were made to understand the questions put to them.
45.Grave and substantial prejudice has been caused to the accused in the facts of the case in hand as the vital segments of different aspects incriminating the accused in the evidence have not been distinctly and specifically put to the accused.
46. The impugned judgment and order of sentence, consequently, cannot stand the legal scrutiny. There is no option with the Court but to remit the case back to the learned lower Court under Section 366(b)(i) of the Cr.P.C.
47. In view of the discussions as above, there being serious illegality having been committed by the learned lower Court and great prejudice having been caused to the accused, the impugned judgment and order of sentence are set aside. The learned lower Court would record the statement of the accused under Section 313 Cr.P.C keeping in view the above observations, in accordance with law. After affording an opportunity, to the accused of leading defence after recording the evidence if any produced by them, the trial Court would decide the matter afresh."
The aforementioned order of remand was, however, set aside Criminal Revision No.93 of 1998 -5- by this Court on 7.5.1997 in a revision petition filed on behalf of some of the accused. It was directed that learned Additional Sessions Judge, Chandigarh shall hear and decide the appeals of the convicts on their merits.
After noticing that the learned trial Magistrate had discussed the evidence in the judgment under appeal which was recorded only in one challan, whereas two challans had been submitted and separate trials had been held and therefore, findings had to be recorded separately, it was once again held by learned lower appellate Court that the trial Magistrate should record separate findings of conviction or acquittal in both the challans on the basis of evidence led in the same and not just in one challan. The matter was, accordingly, remanded to the trial Magistrate to decide the matter afresh as if the statements of the accused had been correctly recorded, but the learned Magistrate should dispose of the cases by considering evidence in each of the two challans, independently, and then to record a finding of conviction or acquittal. This order passed by learned Additional Sessions Judge, Chandigarh on 2.1.1998 has been challenged by the petitioner by filing the present revision under Section 401 Cr.P.C, with a prayer that the order passed by learned lower appellate Court remanding the case to the trial Court for proceeding afresh be set aside and the petitioner be acquitted of the charges against him.
Learned counsel for the petitioner submitted that the case in hand is in respect of certain drafts, which were said to have been Criminal Revision No.93 of 1998 -6- forged/fabricated in the years 1977, 1978 and 1979 and the FIR was registered in 1980, and therefore, no useful purpose would be served by the impugned order passed by learned lower appellate Court in remanding the case again to the trial Court for proceeding afresh. The petitioner had been facing the agony of the criminal prosecution all these years and his fundamental right of speedy trial has been violated on account of direction by the learned lower appellate Court to the learned trial Court to consider the prosecution evidence in the two challans separately for the purpose of conviction or acquittal of the accused and not to rely upon the evidence in the one challan only so as to decide the other challan as well. It is also submitted that the complainant Corporation had also filed three civil suits i.e suit Nos. 153, 366 and 367 so as to seek recovery of the amount of the drafts in question along with interest at the rate of 18% per annum and in all those suits, the petitioner had been made as one of the defendants along with others, but those suits had been dismissed by learned Sub Judge Ist Class, Chandigarh. Therefore, no useful purpose would be served by prolonging the agony of the petitioner any further and accordingly, the revision petition be accepted and the petitioner be acquitted of the charges against him.
The case in hand has a chequered history. Forgery and fabrication of drafts was alleged by the complainant-Corporation by getting FIR No.355 dated 11.4.1980 registered at Police Station Central, Chandigarh. Although the alleged offence had been committed somewhere during the period 1977 to 1979, yet the FIR was registered on 11.4.1980. The challans were presented on 19.11.1983. The trial of the Criminal Revision No.93 of 1998 -7- case lasted for 6½ years, in which the prosecution examined about a score of witnesses. Ultimately, the learned trial Court convicted and sentenced the petitioner and his co-accused on 2.6.1990. Various appeals filed by all the convicts came to be decided by learned Additional Sessions Judge, Chandigarh on 10.7.1995 by remanding the matter to the learned trial Court so as to put specific questions to the accused under Section 313 Cr.P.C, without putting one long question, instead of separate and specific question of each material and distinct aspect of the matter. This order of remand was, however, not approved by this Court when it accepted Criminal Revision Nos. 691 and 685 of 1995 on 7.5.1997 and matter remanded to learned Additional Sessions Judge to hear the appeals and decide the same on merits. This led to a fresh decision in the various appeals filed by the petitioner and his co-convicts by learned Additional Sessions Judge, Chandigarh on 2.1.1998. This time, the said Court once again remanded the matter to the learned Magistrate, not on the issue of recording of fresh statements of the accused under Section 313 Cr.P.C, but on the question that evidence recorded in both the challans be evaluated independently so as to record a separate finding of conviction or acquittal and not to rely upon the evidence recorded in one challan for deciding the fate of the accused in the other challan as well. The impugned decision was challenged by the petitioner by filing the present revision, which came up for preliminary hearing on 23.1.1998, when notice of motion was issued and proceedings before the learned trial Court were directed to go on, but without passing the final order. The matter now stands at the same stage for the last more than ten years. There is no material on the record that it was any act of Criminal Revision No.93 of 1998 -8- the prosecution which contributed to the delay in the conclusion of the trial or disposal of the appeal by the learned lower appellate Court. The petitioner and his co-accused had been facing criminal prosecution for various offences, one of which also envisaged sentence of life imprisonment. Therefore, it cannot be said that the right of speedy trial of the petitioner stood violated and resultantly, the criminal proceedings against him should be set at naught.
In so far as the decisions of the three civil suits, the copies of which have been placed on the record by the petitioner as Annexures A-2 to A-4, all those civil suits had been dismissed on the question of limitation and not on merits. Although the drafts in questions had been issued during the period 1977 to 1979, yet the suits were filed on 24/27.7.1987, i.e much beyond the statutory period of three years. Accordingly, those suits were found to be hopelessly time barred. No finding had been arrived at in any of the three suits in regard to the non- involvement of the petitioner or his co-accused in the alleged fabrication/forgery of various demand drafts.
To be fair to the learned counsel for the petitioner, the various judgments relied upon by him may be examined. Learned counsel for the petitioner referred to Mangat Rai vs Ram Lal Gupta, 1995 (2) RCR (Criminal) 589, Prem Singh vs State of Haryana, 2002 (2) RCR (Criminal) 825 and Munna Lal Khandelwal & Ors. Vs B.Hazra, Enforcement Officer & Ors., 2000(2) All India Criminal Law Reporter 734. However, on going through the facts in the Criminal Revision No.93 of 1998 -9- aforementioned judgments, this Court is of the view that none of them is applicable to the facts and circumstances of the present case.
In the case of Mangat Rai (supra), the issue was in respect of the individual partners as to whether they were authorized to sell the property. There was a criminal complaint against a partner that he sold certain property and misappropriated the amount. However, the suit on the same facts had already been dismissed and accordingly, it was held that the criminal proceedings could not be sustained when the civil suit on the same matter was dismissed. In Prem Singh's case (supra), FIR had been registered with the allegations that the sale deed had been forged. Civil matter in respect of the same was still pending and therefore, it was held that the criminal proceedings could not be continued, as there was possibility of civil Court deciding that the sale deed was not a forged document. In Munna Lal Khandelwal's case (supra), the petitioner therein stood charged in departmental proceedings and criminal proceedings. However, he was exonerated in the departmental proceedings as charge could not be established. Accordingly, it was held that allowing a criminal proceedings to continue and forcing the petitioner to face ordeal of trial would amount to abuse of process of Court.
On the other hand, in the present case, the three civil suits filed by the complainant-Corporation against the petitioner and his co- accused had been dismissed only on the question of limitation and not on merits. In none of the three suits, it was held that the petitioner and his Criminal Revision No.93 of 1998 -10- co-accused were not involved in the forgery and fabrication of the drafts in question.
Resultantly, there is no merit in the revision, which is, accordingly, dismissed.
August 06, 2008 (T.P.S.MANN) Pds. JUDGE