Dhaniram Kushwah and Others vs Kammodi Lal Koli

S.K. Palo, J.—Heard.

The complainants/petitioners have filed this application for leave to appeal under Section 378(4) Cr.P.C. being aggrieved by judgment dated 17.09.2007 passed by JMFC, Shivpuri in Criminal Case No. 350/04.

Brief facts just necessary for disposal of this petition are that the complainants Dhaniram Kushwah, Gulab and Harnam Singh have filed separate complaints under Sections 420, 467, 468, 323 and 294 of IPC. The accused/respondent Kammodilal Koli, was the Patwari at village Devari on the relevant time. All the three complaints were of the same facts and alleged to have committed within a span of one year. Therefore, all the complaints were decided jointly by the learned JMFC.

It is alleged that the complainants are the residents of village Barkedi. Accused/Patwari Kammodilal came to the village Barkedi and contacted the complainant and other persons and told them that at village Devarikhurd a big chunk of Government land is available, whoever wants to get the land may deposit 3,000/- rupees per bigha (2.2. bigha constitute one acre of the land as per local measurements). After two days on 10.04.2012, all the three complainants deposited Rs.30,000/- each with accused for allocating 10 bigha of land to each of them. After two days, respondent Patwari gave them copy of map, copy of khasra and Bhu Adhikar and Rin Pustika, (Part II) of survey Nos. 96, 97 and 99 situated at village Devari Khurd to the complainants and assured them to provide the Bhu Adhikar and Rin Pustika (Part -II)of survey No. 99 of village Devari Khurd. Later, they did not get possession of the land nor they received any documents.

On 07.02.2004, they went to the house of the respondent/Patwari and demanded their money. He refused to give money and uttered obscene words to the complainants. He was prepared to quarrel to the complainants. The complainants then sent complaints by registered post to the Collector, Shivpuri and Superintendent of Police, Shivpuri. But no action was initiated. Hence, they filed the complaints.

Learned Trial Court after registering the complaints initiated proceeding and charges under Sections 420 and 294 of IPC has been framed.

Learned Trial Court after recording the evidence pronounced the impugned judgment on 17.09.2007 and acquitted the respondent under Sections 420 and 294 of IPC.

The petitioners/complainants challenged the impugned judgment on several grounds stating that the impugned order and judgment dated 17.09.2007 is illegal and wrong in the eyes of law. It is also submitted that learned JMFC have not gone through the evidence properly and judiciously. Therefore, the same be set- aside and the petitioners be granted leave to appeal.

Perused the impugned judgment.

Heard the learned counsels for the parties as well as the respondents.

The learned Trial Court observed that the Patwari/respondent is not Patwari of village Barkadi where the so called disputed land is situated. He informed the complainants about the availability of land at village Barkadi. The complainants did not even see the land. They paid the substantial sum of Rs.30,000/- each to the respondent without having seen the land and its documents. It is also found by the learned Trial Court that the complainants were not financially well of. Despite this, they arranged 30,000/- rupees each which itself creates suspicion. Complainant Dhaniram Kushwah said that he arranged the money within two days but how he arranged, he is not in a position to explain. Complainant Harnam Singh arranged the amount by selling his yield within two days. Gulab Singh arranged 30,000/- rupees within two days but he has also not explained how he arranged that huge amount.

After two days, of the payment of money, the papers said to have given to the complainants by the Patwari. The complainants kept quiet and did not complain to the Tehsildar, Police and District Magistrate in this regard for two long years. Witness Mohan Singh (PW-4) refused that he know about any revenue record. Witness Kallu (PW-5) said to be the witness, in his presence, the money was handed over to the Patwari/respondent. However, this statement of PW-5 Kallu has not been corroborated by the complainants themselves.

Besides, it was also observed by the learned Trial Court that Gopal (PW-1) has no knowledge that Patwari Kammodilal has given any document (Patta) of any land to any of the villagers. Kammodilal has been examined as DW-2. He has stated that he had dispute with Pathiram regarding demarcation. Pathiram is the brother-in-law of complainant Dhaniram. Gulab Singh, Harnam Singh are also related to each other. Because of their enmity he has been falsely implicated. He denied the issuance of Bhu Adhikar and Rin Pustika (Part II) to the complainants. His hand writing has been denied by him. The Bhu Adhikar and Rin Pustika (Part II) was not subjected to any examination. That being so, it cannot be possibly asserted that these documents were prepared by respondent/Patwari.

Keeping the things in sequence firstly without first seeing the land the complainants made the payments, it is not acceptable that the complainants might have paid such a huge amount to the Patwari. Secondly, after two days of the payment when the complainants received the Bhu Adhikar and Rin Pustika, (Part II) which are said to be forged ones. Even then the complainants remained silent for almost two years which is not plausible.

Holding that, the learned Trial Court has given the benefit of doubt to the respondent/Patwari and found the charge under Section 420 of Cr.P.C. not proved.

Learned Trial Court also observed that the complainants have asserted that when the complainants went to the house of Patwari for refunding their money, the respondent/Patwari abused them by obscene words. But in the statements the exact date of the incident has not been mentioned nor they mentioned that because of these abuses they felt annoyed. Therefore, offence under Section 294 of Cr.P.C. is also not made out beyond doubt.

Having gone through the certified copies of the statements and the documents and Bhu Adhikar and Rin Pustika, Part II alleged to have written by and given by the respondent/Patwari were not examined by any hand writing expert. Therefore, I do not find any irregularity or perversity in the impugned order. Thus, the application for leave to appeal is not maintainable, hence it is dismissed.