Bangalore District Court
In This Case Has Testified In Her ... vs No.1 In The Year 2011 Alleging Creation ... on 11 January, 2023
KABC030101302012
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 11th day of January 2023
Present: Shri Anand T Chavan, B.Com., LL.B(Spl.).
I Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C.No.9950/2012
Date of Offence : 25-11-2010
Name of complainant : State by CCB(F & M quad)
N.T. Pet, Bengaluru.
(By Learned Sr. APP)
Name of accused : 1. Mohan Kumar
S/o late M.Devadas,
aged 49 years,
BBMP Member,
R/o No.5/4, Gokula,
5th cross, 1st main,
Govindarajanagar,
Bengaluru
2. Javarayigowda
S/o late Nijagunaiah,
aged 53 years,
BBMP Member,
R/o No.121, 1st 'E' main,
1st block, Nagarabhavi
2 C.C.No.9950/2012
2nd Stage, Bengaluru 72.
3. N.S.Krishnappa
S/o Subbegowda
aged 52 years,
R/o. No.2291,
4th main, 4th cross,
RPC Layout, Vijayanagar,
Bengaluru.
(A1 By Shri S.Balan Advocate)
(A2 By Shri D.S.M. Advocate)
(Case against A3 is abated)
Offences complained off: U/s. 471, 474 R/w Sec.34
of IPC.
Plea of accused : Pleaded not guilty
Final Order : Accused are acquitted
Date of Order : 11-01-2023
JUDGMENT
Inspector of Police CCB (F & M Squad), Bengaluru has filed charge sheet against accused No.1 to 3 for offences punishable under Sections 471, 474 R/w Sec.34 of IPC.
2. Brief facts of prosecution case are that:- 3 C.C.No.9950/2012
A land baring Sy.No.49/3 of Srigandada Kaval, Yeshwanthpur Hobli, Bengaluru north, measuring 3 acres 38 guntas is ancestral property of father of C.W.1 by name Sriram. C.W.1 filed a suit before Hon'ble XXII Addl. City Civil & Sessions Court, Bengaluru under O.S.No.9586/1997 seeking partition in above land. The mother of C.W.1 i.e., C.W.4 and other children of her father i.e., C.Ws.2, 3 and 5 have entrusted responsibility of aforesaid land to accused No.1, since they were unable to look after his affairs. Thereafter accused No.1 on the basis of a forged General Power of Attorney dated 10-2-2003 before notary, sold out the aforesaid land in favour of accused No.2 on 8-6-2005 by executing a sale deed. Thereafter accused No.2 on 11-10-2006 sold 9 guntas of said land in favour of accused No.3. The accused No.1 to
3 during pendency of aforesaid Civil suit filed by CW1 were in possession of aforesaid forged GPA 4 C.C.No.9950/2012 Deed dated 10.02.2003 and they got executed aforesaid sale deeds in favour of Accused no.2 and 3 by using said forged document, despite having knowledge that it is created and concocted one. Hence it is alleged that accused No.1 to 3 in furtherance of their common intention committed above act of presenting the fake GPA deed for the purpose of execution of above sale deeds and they were found it in possession despite they knew that it is not a genuine document.
3. Thereafter it shows that C.W.1 lodged private complaint before learned V Addl. CMM Court under PCR No.2752/2011 against accused No.1 to 3 and also against her mother and brothers i.e., C.Ws.2, 4 and 5, by citing them as accused no.4 to 6. Thereafter the matter was referred to Kamakshipalya PS for investigation u/s 156(3) of Cr.P.C. as per order dated 07-02-2011. The said police registered the case in their PS 5 C.C.No.9950/2012 Cr.No.112/2011 and FIR is issued. Thereafter the investigation of the case is transferred to CCB (F & M Squad). I.O. collected material evidence and report of FSL. After recording statements of material witnesses and after completion investigation, I.O. filed charge sheet against accused No.1 to 3 for above offences. Further I.O. cited accused No.4 to 6 as C.W.2, 4 and 5 witnesses, by dropping their names from list of accused.
4. After filing of this charge sheet against accused, cognizance of alleged offences are taken and summons is issued to accused. Accused have appeared before court in pursuant to summons and they are enlarged on bail. However, accused No.3 reported as dead before charge and case against said accused is abated. Copy of charge sheet is furnished to accused No.1 and 2 u/s 207 of Cr.P.C and charge is framed against them. Accused No.1 6 C.C.No.9950/2012 and 2 have not pleaded guilt of alleged offences and they have claimed to be tried.
5. In order to prove the guilt of the accused No.1 and 2, prosecution has examined 7 witnesses as P.Ws.1 to 7 and got marked 15 documents as per Exs.P1 to P15. Statement of accused u/s 313 Cr.P.C. is recorded and accused have denied incriminating evidence against him. Accused No.1 and 2 have not led any defence evidence, but they have got marked Exs.D1 to D3 documents by way of confrontation to prosecution witnesses.
6. On the basis of charge sheet allegation, the following points arose for consideration:
1. Whether the prosecution proves beyond reasonable doubts that accused No.1 and 2 have committed offence punishable under section 471 R/w Sec.34 of IPC?
2. Whether the prosecution proves beyond reasonable doubts that accused No.1 and 2 have committed offence punishable 7 C.C.No.9950/2012 under section 474 R/w sec.34 of IPC?
3. What order ?
7. Heard arguments. Perused oral and documentary evidence adduced by the prosecution.
8. The following are findings to above points.
Point No.1 and 2 : In the Negative Point No.3: As per final order, for the following:
REASONS
9. Point No.1 and 2 :These points are taken together for consideration as findings on one point have bearing on other points.
10. P.W.1 Jayasheela W/o Manjunath, who is complainant in this case has testified in her evidence that C.W.2 is her younger brother, C.W.3 is her younger sister, C.W.4 is her mother and C.W.5 is also her younger brother. She has stated that land bearing Sy.No.49/3 measuring 38 guntas of Sunkadakatte village was in the name of her father 8 C.C.No.9950/2012 and accused No.1 has forged her signature and he has got created a false GPA deed in his name. P.W.1 has further identified said created GPA deed as per Ex.P1 and she has specifically stated that signatures on said GPA deed do not belong to her. She has identified her disputed signatures on said GPA marked by FSL as per Q1 to 4 and specifically stated that she has not put those signatures. Further P.W.1 has identified her signatures on specimen document as per Ex.P2 and she has identified her signatures on said document marked by FSL as per R1 to R20. P.W.1 has further identified her signature on Ex.P3 document, which is said to have been signed by her on a document of National Co-operative Bank marked by FSL as S1 & S2. P.W.1 has further stated that the property mentioned in GPA bearing Sy.No.49/3 belongs to her father and he expired in the year 1993. Thereafter in the year 1997, she filed original suit against mother and brothers seeking partition and said suit is 9 C.C.No.9950/2012 decreed. Further she preferred an Appeal against said decree before Hon'ble High Court of Karnataka wherein the Hon'ble High Court has ordered to allot equal shares to all of them. P.W.1 has further stated that during pendency of the suit, she came to know about sale of aforesaid land and on enquiry, she came to know that her signatures were forged in related document. She has further stated that she approached Kamakshipalya PS and they delayed investigation of the case. Hence she approached office of the Commissioner of Police who referred the matter for investigation to CCB. Subsequently P.W.1 has rectified her version by stating that said case is filed as a private complaint. In relevant portion of her cross-examination by counsel for accused No.1, P.W.1 admits that she is able to read English language and denies that she has created contents of her private complaint. Further she has admitted that contents of para 3, 5 and 10 of her complaint are true and correct 10 C.C.No.9950/2012 and said paras are together marked as Ex.D1 as per request of counsel for accused No.1. However, on going through Ex.D1 paras, it clearly shows that she has made common allegations against accused No.1 to 3, her mother and brothers with regard to forgery of aforesaid GPA deed.
11. She has further admitted that she has filed suit against her mother and brothers at the time of filing this complaint and she asserts that she came to know about GPA in the year 2010. She has further stated that she did not discuss about said document with them and she has not enquired about their signature on said deed. She has stated that she enquired only about her signature and again she has changed her version by stating that she has not enquired with anybody about her signature. Most importantly she has admitted that she has not seen the GPA personally at the time of filing of this complaint. Further on confrontation with para No.16 11 C.C.No.9950/2012 of judgment of Hon'ble High Court of Karnataka in W.P.No.580/2008, she admits to have read said para. The said document is marked is marked as Ex.D2 and relevant para is marked as per Ex.D2(a) as per request of defence side. In her further cross-examination P.W.1 admits that she does not remember when she lodged complaint before concerned police and she does not remember whether she has any documents in that regard. She pleads ignorance if she had filed said complaint only against his mother and brothers and she denies the suggestion that in said complaint she had admitted to have signed GPA. She has further stoutly denied that in said complaint she has mentioned that her mother and brothers had obtained her signatures on GPA, assuring to give her amount and later they did not do so. Inspite of such suggestions P.W.1 has not produced copy of said complaint for the reason best known to her. 12 C.C.No.9950/2012
12. In her further cross-examination P.W.1 admits that at that time police had enquired herself, her mother and brothers in between filing of said complaint and filing of private complaint. She has further admitted that police had received her statement in writing during said period and similarly statements of her mother and brothers may have been recorded. Inspite of above suggestions P.W.1 has not produced such statements before this court. In her further cross-examination P.W.1 admits that she has given statement against her brothers and mother about Sy.No.49/3 and GPA and at that time she did not know as to where the GPA was kept. She further admits that she has documents with regard to said complaint and statement given before police and she has no impediment to produce such documents. She further admits that she has not mentioned the above facts in private complaint, which amounts to suppression. It is suggested to her that she has 13 C.C.No.9950/2012 intentionally suppressed said fact and pleads ignorance that she does not remember as to why she did not mention said facts in private complaint. She has clearly admitted that she does not know where GPA was kept at the time of filing private complaint and she filed said complaint without seeing GPA and her signature on said document. She has further stated that she is not aware at the time of filing of complaint that how GPA changed from one hand to other hand and admits that CCB police had showed her original GPA i.e., Ex.P1. She has further stated that she does not know from whose custody police seized said document and denies that in page No.1 of GPA her name is written with her own handwriting. She has volunteered that she does not know who had insisted to write her name on said document and denies that her mother and brothers had insisted her to do so.
14 C.C.No.9950/2012
13. In her further cross-examination dated 02-08-2021 P.W.1 states that there were some differences between herself, her mother, brothers and sister in between 2001 to 2004 and even today they do not speak to each other. He further states that differences arose from 1997 when partition suit was filed and she has given complaint against everybody including their mother and brothers. She has further stated that she came to know about creation of GPA by her mother and brothers in the year 2008-09 and police did not investigate on her complaint lodged against them in the year 2008. She has admitted that she has not mentioned about complaint of 2008 in this private complaint and she denies that intentionally she has not mentioned it. Further P.W.1 on confrontation of judgment in O.S.1959/2014 admits that the said case is filed by her mother, brothers, sisters by citing her as defendant No.4 and said document is marked as Ex.D3 as per request of 15 C.C.No.9950/2012 defence side. She has further admitted that said case was filed in respect of GPA and on confrontation of page No.11 of said judgment she admits that it is observed in said judgment that forgery of GPA dated 10-8-2020 is not proved. The particular observation in above judgment is marked as Ex.D3(a) by defence side. Most importantly P.W.1 clearly admits that she does not know personally as to accused himself has forged the said GPA as averred in her chief-examination. She has further clearly admitted that she did not file any protest petition against final report of this case in dropping charges against her mother and brothers. It is suggested to her that her mother and brothers themselves have obtained her signature on said GPA. She has stated that she has no idea as to why she did not file such protest petition and she just followed instruction of her counsel. She has further admitted that she filed partition suit of 1997, complaint of 2008 and present private 16 C.C.No.9950/2012 complaint as per instructions of her counsel. She has denied suggestion that after decree of suit in the year 2008 her lawyer adviced her that only civil cae will not work out and she needs to file criminal case for making other side to settle the matter. In last para of her cross-examination P.W.1 admits that after knowing that they had given GPA in favour of accused No.1, she filed this case, but denies that she herself has signed Ex.P1 GPA. It is suggested to her that she has filed present case to harass her mother and brothers. PW1 has denied these suggestions.
14. P.W.1 is further examined in chief by prosecution and she has identified private complaint lodged by her as per Ex.P1 and her signature on it as per Ex.P4(a). She has also identified copy of her family G-Tree as per Ex.P5 and these documents are not challenged by defence side by way of cross- examination.
17 C.C.No.9950/2012
15. C.W.5/P.W.2 Manjunath S/o late Sriram the younger brother of P.W.1 has testified that now ancestral land of his family bearing site No.9/3 of Kamakshipalya is in possession of accused No.1 and P.W.1 has filed present case against himself and accused No.1 in the year 2011 alleging creation of GPA deed by them. He has further stated that 12 persons had share in said land and CCB police had shown them copy of such GPA in the year 2011, which disclose that his family members had executed said document in favour of accused No.1, but they had not executed such documents in his favour. Further on seeing Ex.P1 GPA, P.W.2 asserts that the signatures found above his name in said document do not belong to him and he has not personally signed it. He has further stated that accused No.1 has sold above land to accused No.2 by creating Ex.P1 GPA. In cross-examination by defence side P.W.2 admits about filing of O.S.1959/2014 by his mother and present 18 C.C.No.9950/2012 complainant is defendant in said case. He has further admitted that the said case is ordered against them and identifies Ex.D3 judgment in O.S. No.1959/2014. He has also clearly admitted that in said suit is held that forgery of GPA is not proved. He has further admitted that present complainant has filed a partition suit against them and litigations are pending between them since 2000. He has further admitted that as per Ex.P4, he was cited as accused No.6 in above complaint and he denies to know contents of Ex.P4. He has again changed his version by stating that Ex.P1 bears signature by name Manjunath, claims that he has not signed it. He has further admitted that his mother i.e., C.W.4 put her signature in Kannada language and he denies that he and his family members know about GPA deed since 2001 itself. He admits that they filed suit about said GPA but claims that it was for relief of possession. He has further admitted that they have not forwarded their 19 C.C.No.9950/2012 admitted signatures and signatures on above GPA to experts for opinion. It is suggested to him that the said GPA bears their own signatures and they have deliberately not forwarded it to experts. He pleads ignorance about the reason for which they did not forward their signatures and volunteers that his lawyer is handling the case. He has denied that signature on his deposition and GPA deed are one and the same and he has further denied that he was aware as to where the said GPA was kept from 2001 to 2011. He has further denied that till today he has not filed any case before police about said GPA and asserts that though they had approached police, but they did not receive the complaint. He states that he approached Kamakshipalya police in the month of January 2011 and he was informed that he is already party in said complaint and the other complaint is not necessary. However, the said aspect is not mentioned in statement of above witness.
20 C.C.No.9950/2012
16. In his further cross-examination he asserts that police have not acknowledged his complaint and on informing the matter, his lawyer adviced him to give statement before CCB. He further admits that he has not given his specimen signatures to CCB for verification and asserts that I.O. informed him his signature is forwarded to experts. It is suggested to him that since he knew that the above GPA consists his own signatures, he has not filed any complaint or private complaint before Court. It is suggested to him that he has falsely stated with regard to forgery of GPA deed by accused No.1 to extract money from him.
17. P.W.2 further admits that his father expired in the year 1993 and they have not tried to change khata of disputed property. He has again changed his version saying that till 2001 they tried to change khata, but later they did not pursue it in view of pending litigations. He has again changed his version 21 C.C.No.9950/2012 by saying that his elder brother was looking after said matter and he has no personal knowledge about it. He has admitted that he has signed documents of no objection for pavathi khata and asserts that it was on plain paper. He further stated that he does not remember whether he signed any bond paper and it is suggested to him that he has signed Ex.P1 GPA deed bond itself.
18. C.W.2/P.W.3 Narendra Sriram S/o B.R.Sriam, who is other brother of complainant, has testified in his evidence that his father had land bearing Sy.No.49/3 measuring 3.38 acres, which was situated at Sreegandadakaval and same was their ancestral property. He has also stated that his father was entitled for 38 guntas in said land and after death of their father in the year 1993 they were trying to transfer Khata of said property on Pavathi basis. He has further stated that accused No.1 introduced to them through their common friend and in the year 22 C.C.No.9950/2012 2005 assured to help them in transferring above Khata. P.W.3 has further stated that accused No.1 obtained signatures of their family members on G.Tree and an application for transfer of Khata in the name of their mother and except those two documents he has not signed any other documents. P.W.3 has further stated that thereafter said property was transferred in the name of their mother and later in the year 2011, when CCB police issued summons to them, he came to know that accused No.1 got transferred the said property to his name. He has further stated accused No.1 had created a GPA deed by forging signatures of himself, C.W.1, 3 to 5. P.W.3 has further stated that when CCB police showed document to him, he discussed the matter with C.Ws.1, 3 to 5 and they denied to have executed said GPA deed. He has further stated that thereafter CCB police recorded his statement and obtained his specimen signatures. He has further stated that C.W.1 23 C.C.No.9950/2012 has filed this case before CCB police and he has identified Ex.P1 GPA deed and stated that it does not bear his signatures and signatures found in it are forged one.
19. In cross-examination by defence side P.W.3 admits that he had filed a case before Civil Court as per Ex.D3 and said case is dismissed. Further he has also admitted that the case was dismissed as per Ex.D3(a) observation. Further he has admitted that they know accused No.1 since 2003-2005, but denies that in the year 2003 his mother i.e., C.W.4 entered into a transaction with accused No.1 and they signed some documents. He has further admitted that, in complaint it is mentioned that himself and C.W.1 have got executed GPA deed in favour of accused No.1 and he has also admitted before police that they have signed and given some affidavits (Pramanapatra) and documents. He has further asserted that said documents were signed for change of khata. It is 24 C.C.No.9950/2012 suggested to him that though they themselves have executed the above GPA deed, he is deposing falsely to harass the accused.
20. C.W.3/P.W.6 Kusuma W/o Harish, who is said to be sister of C.W.1 has testified in her evidence that CW1 has lodged this case alleging forgery of a property document and she has not put her any signatures on property related documents. She has further stated that CW1 had showed her a GPA and enquired whether she had signed such document and she informed that she has not signed such document. Further after seeing Ex.P1 GPA, PW 6 has stated that Signature on said GPA does not belong to her and she does not know who had signed said GPA in her name. She has further stated that she had once put her signature for changing Katha of property from name of her father to the name of her mother. This witness is treated as hostile by prosecution in part and in 25 C.C.No.9950/2012 cross-examination by learned Sr.APP., she admits that she had given her signature to accused No.1 for changing Khata of Sy.No.49/3.
21. In cross-examination by defence side this witness admits that she does not know anything about this case and her elder brother looks after properties of their family. She has further stated that she does not remember how many signatures she had put for changing khata of her father and whether said document was typed or handwritten. She had again admitted that she had signed typed papers but believing her brother and she had volunteered that, she had put it after reading said document, but she does not remember how may papers she signed. She has further stated that she does not know about cases filed by C.W.1 against her brother and admits that she had not given any statement before police.
26 C.C.No.9950/2012
22. P.W.7 Sarojamma W/o late Sriram, who is mother of informant has testified that C.Ws.1 to 3 and 5 are her children, she does not know accused No.1 and her husband expired 18 to 19 years back. She has further stated that after death of her husband, her children were looking after his properties and she has not signed any documents in respect of such properties in favour of anybody after death of her husband. On confrontation of Ex.P1 GPA, she has stated that she has not signed it and C.W.1 filed this case after knowing that someone else is selling their land. However, in relevant portion of cross-examination P.W.7 states that she does not know if herself and her son filed case against P.W.1 Jayasheela and she filed another civil case against them. She has further clearly admitted that she has no personal knowledge about such cases and even present matter is looked after by her son and she has no personal knowledge about it. 27 C.C.No.9950/2012 Most importantly she asserts that she has never seen accused No.1 present before court and she denies that she is deposing falsely as per instance of her children. Most importantly she has stated that generally she puts her signatures in Kannada language and on confrontation of first page of her own deposition recorded by this Court on 11-04-2022, she denies her signature on it. This aspect raises serious doubt with regard to conduct of this witness. She has further admitted that her similar signatures as "ಸರರರಜಮಮ " are found on Ex.P1 and her children are handling this case. She denies that she and her children have executed Ex.P1 GPA deed by receiving money from accused No.1.
23. P.W.5 Syed Aktar Immam S/o Syed Khalim Uddin, who is hand writing expert of FSL has testified in his evidence that From 1981 to 2014 he has served as Handwriting and Document expert in FSL, 28 C.C.No.9950/2012 Bengaluru. On 30.11.2011 he has received following documents of this case from CCB F&M.
1. GPA dtd. 10.02.2003 in Sy. No. 49/03 concerned to Srigandada Kaval village, Yeshwanthpura Hobli in which the questioned signatures are marked as Q1 to Q4 by IO and me.
2. Standard Signatures said to be of S. Jayasheela in two sheets and a cheque bearing no. 828495. said signature on documents marked as R1 to R20 and S1, S2 by IO and him.
24. P.W.5 has further stated that the above standard and questioned signatures are subjected for scientific test and he came to opinion that the person who wrote the standard signatures marked as R1 to R20, S1, S2 i.e., complainant/CW1 did not write the questioned signatures marked as Q1 to Q4. He has further stated that above questioned signatures marked as Q1 to 4 are produced by means of imitation forgery. Accordingly he has identified certificate in that 29 C.C.No.9950/2012 regard as Ex.P14 and his signature on 2 nd page as per Ex.P14(b). he has identified GPA forwarded to him for examination as Ex.P1 and his signature on it as Ex.P1(a). He has also identified document of specimen signatures of CW1 as Ex.P2 and his signature on last page of Ex.P2 as per Ex.P2(c). He has identified Zerox cheque forwarded for examination as Ex.P3, his signature on it Ex.P3(b). Sample seal of FSL as Ex.P15 and his signature on it as Ex.P15(a).
25. In cross-examination by defence side P.W.5 admits that the age of document can be ascertained through grapho analysis and he denies to know if Q.1 to Q4 and R1 to R4 could have been taken simultaneously. He has further admitted that he has not assigned date of origin of disputed signatures and asserts that I.O. has mentioned such date and origin of R1 to R10 signatures, which he does not remember. He has further denied that it is mandatory to ascertain such fact and exclusive xerox documents cannot be 30 C.C.No.9950/2012 considered for examination. It is suggested to him that he intentionally concealed date of origin of disputed signatures and admitted signatures in his report, which is denied by him. P.W.5 has further admitted that similarities and dissimilarities are to be ascertained during examination and he has not mentioned such factors in his report. Though he has stated that there were no similarities, he has admitted that he has not used particular word dissimilarity in his report. He has denied that he has supported I.O., who belongs to his department. He has further denied that though he has not enlarged each and every word he has given false opinion as desired by I.O.
26. P.W.4 G.V.Uday Bhaskar S/o Veerappa the then Police Inspector of CCB (F & M Sqaud) and I.O. of this case has testified in his evidence that From January 2010 to October 2012, he has served as PI in CCB F & M Squad, Bengaluru. On 05.03.2011 he 31 C.C.No.9950/2012 received order of Bangalore City Commissioner to take over further investigation of the case as per Ex.P6. Thereafter the case file was assigned to him as per Ex.P7 order of Joint Commissioner of Crimes, Bengaluru. He has further stated that on 23.05.2011, he enquired accused No.1 - Mohan Kumar and recorded his statement wherein, he produced G-Tree of family of P.Ws.3 to 5 and CW1 and supporting affidavit. On 24.05.2011 he recorded statement of accused No.2 by name Javarayi Gowda and instructed him to produce original disputed GPA . On 03.06.2011 he recorded further statement of C.W.1 and collected proof of documents of his family namely family G-tree, Aadhaar documents, election card, school cumulative record, copy of ration card of his father. P.W.4 has further testified that he collected her sample signatures on white paper as per Ex.P5 document and identified copies of election ID card with PAN Card, cumulative 32 C.C.No.9950/2012 record, ration card of C.W.1 as per Exs.P8 to P10. He has further stated that on 03.06.2011, he collected copy of old cheque bearing no. 828495 of National Co-operative Bank Banashankari bearing signature of CW1 as an admitted document along with statement and sample signatures. Further on 21.06.2011, he enquired CW2 - Narendra and recorded his statement. On 13.09.2011 he enquired accused No.3 - Krishnappa, who gave statement saying that original GPA is with CW2 and along with his statement A3 produced zerox copy of the sale deed of property purchased by accused No.2 from accused No.3. P.W.4 has further testified that on 19.09.2011 he issued notice u/sec. 91 Cr.P.C to accused No.2 to produce the original disputed GPA, On 20.09.2011, he requested Sub-Registrar Peenya to provide copies of registered deed connected to Sy.No.49/3 and On 30.09.2011 Sub-Registrar Peenya produced certified copy of sale deed dated 33 C.C.No.9950/2012 08.06.2005 executed in respect of aforesaid land from accused No.1 and 2 along with EC of said property. He has identified certified copy of sale deed, as Ex.P11. He has further testified that on 14.10.2011 accused No.2 produced disputed original GPA along with letter and he has seized it under PF No. 62/11. He has identified said P.F as Ex.P12, his signature Ex.P12(a). PW.4 has further stated that on 18.10.2011, he issued notices to C.Ws.3 to 5. On 22.10.2011 they appeared in response to notices and he recorded their statements. Further said witnesses denied to have endorsed aforesaid disputed GPA. He has further stated that on 30.11.2011 he forwarded disputed GPA deed, sample signature of CW1 along with admitted signature of CW1 to questioned document section of FSL, Bengaluru through their staff Shivakumar and identified letter addressed to FSL as Ex.P13, his signature as Ex.P13(a). He has 34 C.C.No.9950/2012 further stated that on 12.01.2012, he received the FSL report through ACP F&M, wherein it was opined by expert that signature on disputed GPA is forged. He has identified report of FSL as Ex.P14, his signature on said document is marked as Ex.P14(a). He has identified original disputed GPA Deed forwarded to FSL, as Ex.P1 and stated that in original GPA he has marked disputed signatures as Q1 to Q4. Further he has identified specimen signatures of CW.1 taken by him as per Ex.P2 and his signature on it as per Ex.P2(a). He has identified zerox copy of old cheque bearing admitted signature of C.W.1 as Ex.P3 and his signature on it as per Ex.P3(a). P.W.4 has further stated that during investigation it was revealed that accused No.1 to 3 used forged GPA deed as genuine and they were in possession of said forged document. Hence he has incorporated Sections 471 and 474 r/w sec. 34 of 35 C.C.No.9950/2012 IPC and on 16.04.2012 he has filed charge sheet after conclusion of investigation.
27. In relevant portion of cross-examination P.W.4 admits that he does not know anything except receiving of FSL report and filing of charge sheet and he has not investigated with regard to matter mentioned in para No.5 of complaint. He has further stated that he dropped names of accused No.4 to 6 of original complaint from charge sheet, as he could not notice any allegations against them in complaint. He has further admitted that he has not investigated the signatures of other signatories of Ex.P1 GPA deed as his focus was only with regard to signature of CW.1. He has denied to know if signatures of other signatories of Ex.P1 GPA deed were genuine one and admits that he has not referred the same for expert opinion. P.W.4 has further admitted that Ex.P1 was not recovered on the basis of voluntary statement of accused No.1 36 C.C.No.9950/2012 and he has not recorded such voluntary statements. He has further admitted that no panchanama was drawn during recovery of Ex.P1 GPA deed and he did not know custody of said document from 21-01-2011 to 23-05-2011. He has further admitted that said document was not recovered from 24-05-2011 to 13-10-2011 and pleads ignorance to suggestion that he has not sealed said GPA deed from 14-10-2011 to 29-11-2011. Again he admits that he has not personally sealed it.
28. P.W.4 further admits that grapho analysis will help in determining age of document and denies that GPA was created after 21-01-2011. He has further admitted that without opinion of expert he cannot say age of document. Further in cross- examination by counsel for accused No.2, P.W.4 admits that he has not recorded statement of accused No.2 on 24-05-2011 and he has not given any notice to said accused on 19-09-2011. He has 37 C.C.No.9950/2012 denied that accused No.2 has not handed over GPA to him on 14-10-2011, but admits that he has not conducted any seizure mahazar on said day. It is suggested to P.W.4 that accused No.2 has not given said GPA to him and it was given by complainant and her family member after lodging the complaint. The said suggestion is denied by P.W.4.
29. Thus on perusal of entire evidence adduced by prosecution it shows that initially the complainant filed present complaint against accused No.1 to 3 and C.Ws.2, 4 and 6 alleging creation and fabrication of Ex.P1 GPA deed by forging signature of C.Ws.1, the I.O. filed charge sheet against accused No.1 and 3 only and he dropped C.W.2, 4 and 6 from the column of accused persons on the ground that the offence is not proved against them. It is also pertinent to note that though the complaint is filed by C.W.1 alleging offences 38 C.C.No.9950/2012 punishable u/s 421, 463, 464, 468, 506(B), 120(B) R/w sec.34 of IPC, the present charge sheet is filed against accused No.1 to 3 for offences u/s 471 and 474 R/w. Section 34 of IPC by leaving allegations of forgery and creation of documents, the complainant for the reason best known to her, did not challenge said charge sheet either by filing protest petition or otherwise. The material elicitation in cross-examination of P.W.1 clearly discloses that she has not initiated any steps in that regard and she has simply accepted innocence of C.Ws.2, 4 and 5, which is a ground to suspect the collusion between said parties. The counsel for accused persons has rightly relied upon relevant portions of complaint, which is marked as Ex.D1 wherein C.W.1 has specifically alleged that accused No.1 created the alleged GPA deed in collusion with accused No.4 to 6, who are cited as C.Ws.2, 4, 5 in charge sheet. Inspite of it the conduct of C.W.1 in pursuing the 39 C.C.No.9950/2012 case only against accused No.1 to 3 that too for offences u/ s 471 and 474 of IPC, which merely speaks about possession and usage of forged documents is a ground to draw inference that the aforesaid GPA deed is executed by family members of C.W.1.
30. Further the material elicitations from the mouth of P.Ws.2, 3, 6 and 7 clearly show that initially they approached accused No.1 seeking assistance to change the pavathi khata of disputed property from the name of their father Sriram to the name of P.W.7 and in that circumstances they admit to have signed certain documents. This aspect and aforesaid material elicitations from the mouth of said witnesses raises strong inference to believe that the above witnesses have executed GPA deed in favour of accused No.1 and subsequently they have suppressed said fact with the shield of present case filed by C.W.1 against accused.
40 C.C.No.9950/2012
31. It is also pertinent to note that in para No.10 of complaint C.W.1 has asserted that she issued notice dated 23-12-2010 to accused No.1 to 6 seeking cancellation of so called GPA deed. If at all the aforesaid GPA was really created and forged, there was no reason for C.W.1 to issue such notice for cancellation of said GPA deed and on the other hand she could have sought for restraining accused persons to act upon it on ground of it's creation and concoction. This aspect is also ground to disbelieve the case of complainant. Further learned counsel for accused No.1 has rightly relied upon Ex.D3 judgment of Hon'ble III Addl. City Civil & Sessions Court, Bengaluru in O.S.NO.1959/2014, which shows that the said suit was filed by present C.Ws.2 to 5 against accused No.1 to 3 and C.W.1 for the relief of declaration to the effect that sale deed executed by accused No.1 in favour of accused No.2 41 C.C.No.9950/2012 dated 08-06-2005 and sale deed executed by accused No.2 in favour of accused No.3 dated 11-10-2006 in respect of above property is not binding upon them and they have also sought for possession of said property from them. It shows that the genuineness of aforesaid Ex.P1 GPA deed is a prime issue of said suit and accordingly issue No.1 is framed in said suit as under:
1) Whether the plaintiffs (i.e., C.W.2 to 5 in this case) prove that defendant No.1 in collusion with defendant No.2 and 3 (A.1 to 3 in this case) forged their signature and signature of defendant No.4 (CW1 in this case) to alleged Power of Attorney?
32. Further counsel for accused No.1 has drawn attention to page No.5 of Ex.D3 judgment wherein it is observed that plaintiffs have contended that after death of their father late B.R.Sriram, for changing khata, they had contacted defendant No.1 i.e., accused No.1 and he had taken an affidavit and genealogical tree of them for said purpose. On the 42 C.C.No.9950/2012 other hand page No.6 of said judgment depicts that defendant No.1 and 3 i.e., accused No.1 and 3 in this case have taken specific contention in their written statement that, plaintiffs and defendant No.4 i.e., complainant and C.Ws.2 to 5 of this case have executed said GPA deed in favour of accused No.1 and with an intention to make money by unlawful means, they have preferred said suit. Further the aforesaid judgment clearly discloses that possession the disputed property is lying with defendant No.1 to 3 and further plaintiffs have prayed for possession of above property. If at all they had executed aforesaid affidavit and G.Tree as per direction of accused No.1, there was no question of delivering possession of such disputed property to him. This aspect is also a strong ground to disbelieve the allegations of possession and usage of forged GPA by accused persons, with knowledge of it's forgery. Furher as already stated above P.W.7 43 C.C.No.9950/2012 does not directly deny the execution of alleged disputed document and she has vaguely stated that the affairs of the family were looked after by her children after death of her husband.
33. Further Hon'ble III Additional City Civil Court has answered said issue in above suit in the negative and in relevant page No.11 of judgment, which is marked as Ex.D3(a) it is held as under:
...... Hence, for all the above reasons of not proving GPA deed dated 10-08-2001 as forged one, suit is barred by limitation, vague allegations, as in Ex.P17, plaintiffs themselves are accused, non- payment of taxes by plaintiffs from 2003, the court finds that plaintiffs are not entitled for reliefs and accordingly all the issues are answered in the negative.
Thus the aforesaid observations of Hon'ble Civil Court clearly disclose that C.Ws.2 to 5 have failed to establish that above Ex.P1 GPA deed is forged document. Further standard proof in criminal case is higher than that of a civil case and complainant is expected to prove the forgery of aforesaid 44 C.C.No.9950/2012 document and usage and possession of such forged document by accused persons beyond reasonable doubts. When C.Ws.2 to 4 and present complainant who are parties to above suit have failed to establish the above aspect under preponderance of probabilities, question of believing forgery of said document beyond reasonable doubt does not arise at all.
34. Further as rightly argued by learned counsel for accused No.1, the I.O. has not chosen to take specimen signatures of accused No.1 to 3 or C.Ws.2 to 5 in order to establish as to who exactly forged aforesaid alleged signatures of complainant on Ex.P1 nor I.O. has chosen to prove that even signatures of C.Ws.2 to 5 are forged in said GPA deed. As already stated above complainant has not challenged dropping of names of other accused from charge sheet and dropping of other sections 45 C.C.No.9950/2012 relating to forgery of document by filing a protest petition. This aspect raises doubt with regard to the intention of complainant, because when defence has taken specific plea that complainant and her family members have voluntarily executed said document, heavy burden lies upon complainant to prove that signature of herself and her family members are forged in said document. Further as rightly argued by defence side the I.O. has just forwarded admitted signatures of complainant on a cheque as per S1 and S2 and her specimen signatures as per R1 to R20 for comparison of signatures on Ex.P1 GPA deed, which are marked as Q1 to Q4. Accordingly P.W.5 handwriting expert has based his FSL report resticting his examination of above signatures only. No reason is assigned by I.O. for non taking specimen signatures of accused persons so as to ascertain that who has exactly forged Q1 to 4 signatures of complainant on Ex.P1 GPA deed. 46 C.C.No.9950/2012 P.W.5 expert has given his opinion that person who wrote the standard signatures marked as R1 to R20, S1, S2, did not write questioned signatures marked as Q1 to Q4 and said questioned signatures are produced by means of imitation forgery. Hence aforesaid Ex.P14 FSL report clearly shows that it is not ascertained by investigating agency as to who forged said Q1 to 4 signatures. When accused No.1 to 3 assert that complainant and C.Ws.2 to 5 themselves have executed aforesaid deed in favour of accused No.1, it raises serious doubt as to who exactly forged said document and whether accused No.1 to 3 had knowledge that any signatures of executants of said Ex.P1 GPA deed are forged and created one.
35. Most importantly Ex.P1 deed discloses that it is executed before one T.K.Anantha Murthy, Notary Public and Advocate and said notary is not even cited as a witness nor examined by prosecution 47 C.C.No.9950/2012 to disprove the execution of GPA deed on particular date. Further it is also pertinent to note that two witnesses have attested said GPA deed and the signatories of said document are identified by one B.P.Anandaraj, Advocate. For the reason best known to the I.O. said witnesses and Advocate are also not cited as witnesses in charge sheet nor they are examined by prosecution, though they are best witnesses to speak about said disputed document.
36. Thus on perusal of entire evidence on record it shows that though it is alleged that accused No.1 to 3 possessed and used Ex.P1 GPA deed for the purpose of execution of sale deeds in favour of accused No.2 and 3, knowing fully well that signatories of complainant are forged one, there is nothing on record to believe that accused themselves have forged or created said deed or they had any knowledge about alleged forgery of signature of complainant. Further the surrounding 48 C.C.No.9950/2012 circumstances of the case and the observation of Hon'ble III Addl. City Civil & Sessions Court, Bengaluru in Ex.D3 judgment in O.S.No.1959/2014 clearly shows that C.Ws.2 to 5 have utterly failed to prove forgery of aforesaid Ex.P1 GPA deed for the satisfaction of the court. Under such circumstances the unilateral report of expert will not help prosecution in any manner to prove the alleged act of possession and usage of alleged forged GPA deed by accused persons and thereby commission of alleged offences by them.
37. Further though learned Sr.APP has filed copies of nomination application filed by accused No.1 for contesting election of BBMP counselor along with affidavit and argued that said accused has suppressed pendency of present criminal case against him, same cannot be a ground to believe that he himself has created Ex.P1 GPA deed, he 49 C.C.No.9950/2012 possessed and used it for the purpose of executing sale deeds in favour of accused No.2 and 3. Hence for the reason stated above, the aforesaid oral and documentary evidence adduced by prosecution has not inspired the confidence of the court to believe that accused No.1 to 3 in furtherance of their common intention possessed and used Ex.P1 GPA deed for execution of aforesaid sale deeds, knowing fully well that said GPA deed is a forged document. Hence it is incumbent upon this Court to hold that the prosecution has failed to prove beyond all reasonable doubt that accused No.1 and 2 have committed offences punishable under Sections 471, 474 R/w Sec.34 of IPC. Hence, Point No.1 and 2 are answered in Negative.
38. Point No.3: -
For the reasons stated and findings given on point No.1 and 2, following is:50 C.C.No.9950/2012
ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 and 2 are acquitted for the offences punishable under Sections 471, 474 R/w Sec.34 of IPC The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
( Dictated to the Stenographer, typed by her directly on computer, revised, corrected by me and then pronounced in open court on this the 11 th day of January 2023).
(Anand T Chavan) st 1 Addl. CMM., Bengaluru.
ANNEXURE List of witnesses examined for prosecution :-
P.W.1, Jayasheela, P.W.2, Manjunath, P.W.3, Narendra Sriram, P.W.4, G.V.Uday Bhaskar, P.W.5, Syed Aktar Imam, P.W.6, Kusuma, P.W.7, Sarojamma;
List of exhibits marked for prosecution :-
Ex.P1, Original General Power of Attorney, Ex.P1(a), Signature of P.W.5, Ex.P2, Specimen document, Ex.P2(a), Signature of P.W.4, 51 C.C.No.9950/2012 Ex.P2(c), Signature of P.W.5 on last page, Ex.P3 Zerox copy of cheque containing the signatures of P.W.1, Ex.P3(a), Signature of P.W.4, Ex.P3(b), Signature of P.W.5, Ex.P4, Private complaint, Ex.P4(a), Signature of P.W.1, Ex.P5, Certified copy of G.Tree, Ex.P6, Order of Bengaluru City Commissioner, Ex.P7, Order of Joint Commissioner of Crimes, Ex.P8 to Ex.P10, Copies of election ID card with PAN card, cumulative record, ration card of C.W.1, Ex.P11, Certified copy of sale deed, Ex.P12, P.F.No.62/2011, Ex.P12(a), Signature of P.W.4, Ex.P13, Letter addressed to FSL, Ex.P13(a), Signature of P.W.4, Ex.P14, Report of FSL, Ex.P14(a), Signature of P.W.4, Ex.P14(b), Signature of P.W.5 on 2 nd page, Ex.P15, Sample seal of FSL, Ex.P15(a), Signature of P.W.5;
List of material object :NIL List of witnesses examined for defence:- NIL List of documents marked for defence:-
Ex.D1, Para No.3, 5 and 10 of complaint, Ex.D2, Certified copy of order produced by complainant with application dated 8-7-2021, 52 C.C.No.9950/2012 Ex.D2(a), Relevant paragraph relied upon by Sri SB, Ex.D3, Certified copy of judgment in O.S.No.1959/2014, Ex.D3(a), Relevant portion of Ex.D3;
1st Addl. CMM., Bengaluru.53 C.C.No.9950/2012
(Judgment pronounced in the Open Court vide separate judgment) ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 and 2 are acquitted for the offences punishable under Sections 471, 474 R/w Sec.34 of IPC The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
I ACMM, Bengaluru.