Chintamani and another vs State of U.P. and another

Ram Autar Singh, J.—This revision has been directed under section 397 Cr.P.C. against the judgment and order dated 25.7.1989 passed by III Additional Sessions Judge, Mainpuri in Criminal Appeal No. 70 of 1987 preferred by the revisionists against their conviction under sections 419, 465 and 468 IPC awarded by II Additional Munsif Magistrate, Mainpuri in Criminal Case No. 653 of 1987.

I have heard learned Counsel for the revisionists, learned A.G.A. for respondent No. 1 on this revision and perused the record. None has appeared on behalf of respondents No. 2 and 3, while parcha pairavi has been filed on their behalf.

The facts giving rise to the case are that respondents No. 2 and 3 instituted a complaint against revisionists Chintamani, Smt. Vichitra and Genda lal under sections 419, 420, 464, 467, 468, 474, 109 of IPC, P.S. Kotwali, District Mainpuri in the Court of II Additional Musnif Magistrate, Mainpuri, which was registered as complaint case No. 653 of 1987 with this allegation that Smt. Jai Devi was wife of Ram Sanehi, who died about 20 or 25 years before filing the said complaint and Smt. Jai Devi inherited two plots Nos. 208A area 29 decimal and 208B area 0.2 decimal of village Lallupura and plot No. 772 area 40 decimal of village Mudoli from her husband, Smt. Jai Devi executed saledeed in favour of Rameshwar Dayal and Chakkan Singh on 5.8.1983 for consideration, while accused Chintamani and his wife Smt. Vichitra Devi wanted to grab her land in dispute and they in collusion with accused Genda lal got a forged saledeed of disputed land in the name of Chintamani purported to have been executed by Smt. Vichitra Devi in the pseudonymous name of Smt. Jai Devi, but actually Smt. Jai Devi never executed the said saledeed in favour of Chintamani in respect of disputed land but Chintamani fraudulently got the saledeed executed by his own wife Smt. Vichitra Devi impersonating her to be Smt. Jai Devi and he produced Smt. Vichitra Devi before SubRegistrar as Smt. Jai Devi and got the saledeed executed. Genda lal and Atar Singh stood as attesting witnesses to the said saledeed and thus this was done in collusion with accused Genda lal, Smt. Vichitra Devi and Chintamani knew all the facts very well from very beginning that Smt. Jai Devi did not execute the saledeed and she did not put her signature on the same. Chintamani also moved an application for mutation in the Court of Tehsildar, which was registered as case No. 557A of 1983 Chintamani v. Jai Devi, in which Atar Singh filed an affidavit as a result of which Chintamani got the mutation application dismissed for want of prosecution and Smt. Jai Devi also filed objection against the said application and thus the mutation application was dismissed and it was never restored thereafter.

The learned Counsel for the revisionists has submitted that there is no evidence on record to warrant the conviction of the revisionists, because the applications ] and affidavits of Atar Singh and Genda lal were legally inadmissible in evidence and could not form basis for conviction of the revisionists. It is further submitted that the revisionists were riot questioned under section 313 Cr. P.C. on the aforesaid applications and affidavits and no opportunity was afforded to them to explain the same and thus the said applications and affidavits could not be read in evidence. Moreover, the Courts below wrongly and illegally shifted the burden of proof of their innocence on the revisionists and admission of coaccused Genda lal could not be read in evidence against the revisionists. It is also submitted that P.W.2, Atar Singh himself admitted that the saledeed in question bore the thumb marks of Smt. Jai Devi and this part of his evidence could not be discarded on the ground that he was not produced for crossexamination and was subsequently discharged by the prosecution. In absence of the evidence of thumb print expert it could not be held that the saledeed in favour of the revisionists did not bear the thumb marks of Smt. Jai Devi. No adverse inference against the revisionists could be drawn for nonproduction of the original saledeed as no notice was served upon the revisionists and otherwise also, they were not required by the Court to produce the same. The thumb mark of Smt. Jai Devi was available in the office of SubRegistrar and could be compared with her specimen thumb marks to ascertain whether or not the saledeed in favour of the revisionists was executed by her. It is further contended that the evidence of Smt. Jai Devi, P.W.1 and Chakkan Singh, P.W. 2 was nothing but hearsay and the Courts below committed error in placing reliance on the same. The saledeed having been intentionally given in evidence in the judicial proceedings and mutation pending in the revenue Court, the said Court alone could file a complaint hi the matter and thus the complaint filed by respondents No. 2 and 3 was barred by the provisions of section 195 of Cr.P.C. It was established from the record and evidence that the saledeed in favour of the revisionists bore thumb marks of Smt. Jai Devi and was executed by her.

On behalf of the complainant Smt. Jai Devi was examined as P.W.1, Chakkan as P.W.2 and Atar Singh as P.W.3 but he was not produced for crossexamination and thus he was discharged. The complainant also filed certified copies of mutation application, order of dismissal of mutation application, extract of khatauni, certified copy of the saledeed in favour of Chintamani, certified copy of application of Atar Singh filed in mutation proceedings, certified copy of affidavit of Atar Singh and the copy of objection as well as statement of Chakkan Singh. The revisionists did not file any document in support of their defence although they stated that they were falsely implicated due to enmity.

The learned Magistrate framed the charges under sections 419, 465 and 468 I.P.C. against the revisionists and recorded the evidence of the complainant. The learned Trial Court on the basis of evidence found the revisionists guilty of charges under sections 419, 465 and 468 I.P.C. and convicted them for above offences.

The revisionists, feeling aggrieved against the said judgment preferred two separate appeals being Nos. 70 of 1987 and 72 of 1987 in the Court of Sessions Judge, which were decided by III Additional Sessions Judge, Mainpuri, by a common judgment. These points as raised in this revision were also raised in above criminal appeals which were dealt with by the learned appellate Court through detailed and reasoned findings.

At this very outset the learned Counsel for the revisionists contended that the learned Courts below wrongly relied upon the application and affidavit of Atar Singh filed in mutation proceedings, in which he stated that the saledeed was got executed by Chintamani impersonating his own wife to be Jai Devi. It has been found that Atar Singh was examined in the Court of Munsif Magistrate during trial but later on he was discharged as he could not appear for crossexamination. The learned appellate Court held that there was statement of P.W.I, Smt. Jai Devi on record, in which she stated that she did not execute any saledeed in favour of Chintamani, who got a forged saledeed executed by his own wife Smt. Vichitra and no crossexamination was made on this point nor any suggestion was put to her in this regard. Moreover, the revisionists did not file saledeed in question in their defence nor the said saledeed was put before P.W.I, Smt. Jai Devi during her crossexamination in order to contradict her on this point and thus the statement of P.W. 1 Smt. Jai Devi was found unrebutted and unchallenged. The learned appellate Court further held that there was another circumstance against the revisionists that Chintamni filed mutation application before SubDivisional Officer, the copy of which was filed in the Trial Court and thus he wanted to get his name mutated on the basis of saledeed purported to have been executed by Smt. Jai Devi and these proceedings were initiated in case No. 557A of 1983, but the proceedings of mutation were dismissed for want of prosecution and Chintamani did not take steps for restoration. Had Chintamani been in possession of genuine saledeed, he could have filed the same in Trial Court in his defence, but he kept silence and he did not file the forged saledeed in the Trial Court and further he did not press mutation proceedings thereafter.

The learned Courts below also recorded its findings that extract of khatauni was evident to show that mutation took place in the names of Chakkan Singh and Rameshwar Dayal on 20.5.1984 and thus the land about which Chintamani got the saledeed was mutated in the names of the respondents and this was strongest circumstances to show that Chintamani got saledeed forged in his favour, which was never executed by Smt. Jai Devi, the real owner of the land as she categorically stated in her evidence in this regard. Moreover, there was no justification for the revisionists withholding such saledeed in their favour. In view of the findings recorded by the Courts below, it was found that the applications and affidavits of Atar Singh and Genda lal were a circumstance against the revisionists which was supported by the testimony of P.W. 1, Smt. Jai Devi.

The revisionists denied all the allegations, evidence and circumstances against them in their statements under section 313 Cr.P.C. and Smt. Vichitra Devi stated that she did not execute any saledeed impersonating herself to be Smt. Jai Devi and accused Genda lal stated that Chintamani told him that his Bhabhi would execute the saledeed and he had to identify her. He also stated that the lady was living in parda at the time of execution of disputed saledeed in the office of Subregistrar so he could not recognise her. The Revisionist Chintamani stated under section 313 Cr.P.C. that he wanted to get the saledeed executed and he got the same. In the light of above evidence and circumstances the Courts below rightly shifted the burden upon the revisionist Chintamani to have produced the original saledeed in his possession. The burden was upon him and he should have discharged the same by producing the originals sale deed in his possession and the respondents were not bound to ask an accused to file evidence against himself. Under these circumstances the revisionists were bound to produce the original saledeed in their possession but nonproduction of the same was strongest circumstance against them. Had this saledeed in question been genuine, the same should have been filed by the revisionists in the Trial Court, but they failed to produce the same and thus the Court below rightly recorded its findings that the saidsale deed in question was forged, as stated by P.W. 1, Smt. Jai Devi, because she denied the execution of saledeed in question, this burden was upon the revisionists that they should have filed the said saledeed in question in the Trial Court and got the signature of Smt. Jai Devi compared. The complainant could not get the thumb impression of Smt. Jai Devi compared with thumb marks affix on the saledeed in question which was never filed by the revisionists in the Trial Court so it was a strongest circumstance against the revisionists and the Courts below rightly recorded their findings in this regard.

The learned Courts below held that another attesting witness, namely, Genda lal also moved an application and affidavit, which corroborated the version of the complainant and thus it was proved that the saledeed in question was got executed by Chintamani in the fake name of Smt. Jai Devi and circumstantial evidence was so strong that could not rule out the possibility that Chintamani got the sale deed executed by his own wife in the name of Smt. Jai Devi.

The learned Counsel for the revisionists contended that the evidence of P.W.I, Smt. Jai Devi was of hearsay in nature, but this argument could not be accepted on record, because the revisionist Chintamani admit "" ted that he got the saledeed executed by Smt. Jai Devi but he failed to file the said saledeed in the Trial Court and P.W.I, Smt. Jai Devi categorically stated that she did not execute the saledeed. On this point her statement was found unrebutted and unchallenged.

The learned Counsel for the revisionists has contended that the saledeed having been intentionally given in evidence in judicial proceedings and mutation pending in the Revenue Court, the said Court alone could file a complaint in the matter and thus the complaint filed by respondents No. 2 ana 3 was barred by provisions of section 195 of Cr.P.C. In the light of above contentions the provisions of section 195 Cr.P.C. are reproduced below:

"195. Prosecution for contempt of lawful authority of public servants, or offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance.

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section | 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or sub clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."

It would be pertinent to mention in this regard that the revisionists or respondents No. 2 and 3 did not file any forged document in the judicial proceedings rather the. revisionists withheld the said forged saledeed executed in favour of Chintamani nor any document filed in judicial proceeding during trial and thus the Trial Court was not bound to file any complaint against the revisionists, because section 195 (1) (b) (ii) provides that the Court concerned shall take cognizance on the complaint of the public servant if any offence described in section 463 or punishable under sections 471, 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court.

If the offence is committed pertaining to document prior to its production in Court and when it is not in custody of the Court, the bar under section 195 (1)(b)(ii) of the Code 1973 does not arise and the complainant is at liberty to file complaint and take action as per rule. There is no such allegation in the said complaint case that any offence under sections 463 or 471, 476 IPC is alleged to have been committed in respect of any document produced or given in evidence in judicial proceedings. Thus the bar of section 195 of Cr.P.C. is not attracted in the present case.

The learned Counsel for the revisionists has also submitted that the revisionists were not questioned under section 313 Cr.P.C. on the applications and affidavits of the witnesses. In this regard it has been found that the learned Trial Court as well as the appellate Court have recorded their findings with regard to applications and affidavits of witnesses, namely, Atar Singh and Genda lal to this effect that the said documents were merely circumstance against the revisionists. No specific questions were put to the revisionists during their crossexamination under section 313 Cr.P.C. but the revisionists were not found prejudiced due to their non examination on this very point, however several questions were put to them with regard to the evidence of witnesses Atar Singh and coaccused Genda Lal Moreover, the revisional Court cannot reappreciate the evidence adduced during trial and the findings of facts recorded by the Trial Court have been affirmed by the Appellate Court and no illegality or irregularity has been found therein.

Moreover, the learned Magistrate did not commit any irregularity or illegality in conducting trial of the complaint case nor its findings were found perverse rather his finding was found perfectly, justified and in accordance with law. The learned appellate Court has recorded its categorical findings on each and every point which do not require any interference in this revision. There is no illegality in the judgment and order passed by the Courts below. No perversity has been found therein. The reasons recorded by the Courts below are perfectly justified and in accordance with law. The quantum of sentence and fine imposed by the Trial Court are perfectly justified and the revisionists do not deserve any leniency in view of nature of the offences committed by them.

In view of the foregoing discussions, this revision is devoid of merits and is liable to be dismissed.

Consequently, this revision is dismissed. The Courts below are directed to get the revisionists arrested in order to serve out the sentence imposed by the Trial Court and send compliance report to this Court at the earliest.

Revision Dismissed.