State of Punjab vs Avtar Singh and Others

Mohinder Pal, J.—Leave to appeal was granted and the appeal was admitted for hearing on 22.8.2001.

State of Punjab has filed this appeal impugning the judgment dated 12.12.2000 passed by the learned Judicial Magistrate 1st Class, Phagwara, in case F.I.R. No. 17 dated 15.2.1995 under Sections 420/419/465/468/471/120-B of the Indian Penal Code (for short ''the Code'') registered at Police Station Sadar, Phagwara, vide which Avtar Singh, Manjit Singh, Niranjan Dass, Chander Pal and Harmesh Lal alias Pappu (accused-respondents) were acquitted of the charge framed against them under Sections 419/420/465/120-B/471 of the Code.

Manjit Singh (accused-respondent No. 2) died on 18.5.2000 during trial and report regarding the entry of his death in the record of the Nagar Nigam, Ludhiana had been placed on record. Accordingly, proceedings against him stood abated.

As is evident from the impugned judgment accused-respondent Harmesh Lal alias Pappu had absconded and was declared a Proclaimed Offender.

The instant case was registered on the basis of application (Exhibit P.C) made by Sohan Qadri (complainant) to the Senior Superintendent of Police, Kapurthala, wherein he stated that he was owner of land measuring 17 marlas comprising khasra No. 708/1794/32/0-13 Khata No. 256/379 and 1703/32/1/1-13/1/10-13 khata No. 250/382 situated at village Chachoke, Tegsuk Phagwara, District Kapurthala; that some person pretending himself to be Sohan Qadri had sold the said land by executing the forged sale deed dated 02.05.1994 in favour of Manjit Singh son of Kram Singh son of Harnam Singh resident of Plot No. 51, Industrial Area, Ludhiana; that he (complainant Sohan Qadri) had never sold the aforesaid land to any person; and that the aforesaid plot was in illegal possession of Manjit Singh( accused-respondent since deceased). He further stated that the aforesaid forged sale deed dated 02.05.1994 was executed in conspiracy of the beneficiary i.e accused Manjit Singh (since deceased), attesting witnesses i.e accused-respondent No. 1 Avtar Singh, accused-respondent No. 3 Niranjan Dass and accused-respondent No. 5 Harmesh Lal alias Pappu (Proclaimed Offender) and the Deed Writer i.e accused-respondent No. 4 Chander Pal. The said sale deed was never executed by him (complainant Sohan Qadri) nor he received any amount in consideration thereof nor he gave any power of attorney to any person for the sale of said plot. They had also attached the photocopy of the sale deed with the aforesaid complaint (Exhibit P.C)

After completion of investigation and due formalities, challan against the accused-respondents was presented in Court.

Charge under Sections 419/420/465/120-B/471 of the Code was framed against the accused. They did not plead guilty to the charge and claimed a trial.

At the trial, the prosecution examined Dharjinder Singh, Sarpanch (P.W.1), Sohan Qadri, Complainant (P.W.2), Pawan Kumar, Patwari (P.W.3), Jatinder Kumar, Registry Clerk office of Tehsildar, Phagwara (P.W.4), Suresh Chander Narang, Notary Public, Phagwara (P.W.5), Sub Inspector Jaswant Singh (P.W.6), Constable-II Chanchal Singh (P.W.7), Nirmal Singh (P.W.8), Chanan Singh, Office-Qanungo, Tehsil Sultanpur Lodhi District Kapurthala (P.W.9) and Assistant Sub Inspector Charanjit Singh (P.W.10)

In his statement recorded u/s 313 of the Code of Criminal Procedure, the accused-respondent Avtar Singh took the stand which is as under:

I am innocent. The fact of the matter is that Jagta father of Sohan Qadri-complainant was the owner of the land measuring 17 marlas situated in village Chachoki, Tehsil Phagwara, District Kapurthala. That Jagta let out his plot measuring 17 marlas to Mehnga Singh son of Man Singh-Ramgarhia prior to the year 1963 and delivered the possession. Said Mehnga Singh was the grand father of Sukhpal Singh alias Pal Singh. That on 19.9.1963 said Jagta promised to sell the said land measuring 17 marlas to aforesaid Mehnga Singh at the rate of Rs. 150/- per marlas through a writing attested by Baldev Singh, Zaildar of village Narur then resident of Mohalla Rattanpura, Phagwara and Kishan Singh s/o Sunder Singh, caste Khalsa-brothers then resident of Phagwara. The sum of Rs. 50/- was paid advance by said Mehnga Singh to Jagta, father of Sohan Qadri-complainant. That sale was to be completed by 10.10.1963. That on this date Mehnga Singh aforesaid paid the entire balance sale consideration at the rate of Rs. 150/- per marla to Jagta aforesaid to Sohan Qadri, but the sale remained incomplete for want of registration of the sale deed. That thereafter Mehnga Singh aforesaid treating himself to be the full owner of the said land measuring 17 marlas raised a living house over that plot comprising four room and boundary wall around it and said Mehnga Singh and his son Joginder Singh along with members of the family kept living in that house openly and continuously as owners. That after the death of Mehnga Singh his son Joginder Singh and later on Sukhpal Singh his son and his mother Chint Kaur and other members of the family continuously lived therein and that they were my neighbours as my property is almost situated opposite the house of Sukhpal Singh and Chint Kaur. The said Sukhpal Singh and Chint Kaur wanted to sell the house and they were living in and I informed my brother-in-law Manjit Singh at Ludhiana and in this manner an agreement to sell between Sukhpal Singh and Chint Kaur as promisers and Manjit Singh as promisee was written on 25.4.1994 for a total sale-consideration of Rs. 1,53,000/- and out of it Rs. 10,000/- was paid as earnest money and it was attested by Joginder Singh son of Puran Chand of village Khera and myself. The agreement was written at the place of Chander Pal deed writer at Court complex, Phagwara. The sale deed was to be executed on 25.5.1994. Later on said Sukhpal Singh and Chint Kaur approached me and asked me that there was difficulty in completing the sale as their names were not mentioned in the revenue record but they would complete the sale by producing the real owner as recorded in the revenue record. Later on said Sukhpal Singh and Chint Kaur accompanied by two persons came to me and I was informed that real owner of the land lived abroad and now he has come; that one of the accompanied person was Nirmal Singh Mehal and other was Sohan Qadri complainant the real owner of the land. Nirmal Singh Mehal claimed that he was managing the affairs of the property of Sohan Qadri in his absence, that I informed Manjit Singh about it at Ludhiana and he sent in the balance sale-consideration and in this manner the sale deed was written on 2.5.1994 and the entire sale price was paid to the person who claimed himself real owner of the property in the presence of Nirmal Singh Mehal and attesting witness including Lamberdar Naranjan Dass. After that I secured the original sale deed from the office and that Nirmal Singh Mehal and took the original document from me and after a week again turned up and demanded his share as he had been instrumental in getting the sale completed but I showed him inability that his demand was illegal. He refused to hand over the original sale deed to me and after a week or so, I was taken aback as I was arrested by the police. I am innocent.

In his statement recorded u/s 313 of the Code of Criminal Procedure, the accused-respondent Naranjan Dass took the following stand which is as under:

xx xx. I am innocent. In fact I knew Nirmal Singh Mehal for the last about 20 years. He approached me and asked me to attest the sale deed which was to be executed by his relative and Principal Sohan Qadri. Nirmal Singh Mehal further told me that Sohan Qadri usually remain abroad and he had come for executing the sale deed. I did not know Sohan Qadri earlier and identified before the Sub Registrar, at the instance of said Nrimal Singh Mehal well known to me earlier.

In his statement recorded u/s 313 of the Code of Criminal Procedure, the accused-respondent Chander Pal took the following stand which is as under:

I did not know the parties. It is correct that I scribed the sale deed on the asking of the parties who were not known to me earlier.

I have heard Mr. Vishal Munjal, Additional Advocate General, Punjab appearing for the State-appellant and Mr. C.L. Verma, Advocate appearing for respondents Nos. 1 to 3 and have gone through the records of the case.

It has been argued by the learned State counsel that the learned trial Judge, while passing impugned judgment failed to appreciate the facts of the case and the evidence on record. The prosecution evidence was sufficient to warrant conviction of the accused-respondents and the trial Court erred in not believing the same.

For the reasons to be mentioned hereinafter, the impugned judgment regarding acquittal of the accused-respondents for the aforesaid offences is not legally sound. Although it is well-settled that the High Court should be slow in disturbing the finding of the fact arrived at by the trial Court and if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, but each case has its own facts. Paramount consideration of the Court is always to avoid miscarriage of justice. A miscarriage of justice which may arise from the conviction of an innocent is no less than from the acquittal of guilty. In this case, the totality of the facts and circumstances of the case point towards the fact that the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence while acquitting the accused-respondents is concerned.

At the outset, the points for consideration framed by the trial Magistrate need to be noticed which are (i) whether the sale deed in question was executed in pursuance of conspiracy hatched between the accused by producing some fake person as complainant Sohan Qadri? and (ii) whether the accused used the aforesaid forged sale deed executed in favour of Manjit Singh as genuine knowing the same to be forged?

For acquitting the accused-respondents, the learned trial Magistrate formed the following view:

xx xx Sohan Qadir (P.W.2) states that he did not execute the sale deed and that some person has impersonated him and sold his land but in the cross-examination this witness has clearly stated that he was permanently living in Denmark but he remained in India from 22.02.1994 upto 22.4.1994. Again he came back to India on 17.5.1994. There is no positive evidence on the file that he was not in India on the relevant dates. The prosecution has not proved any entry of departure of this witness from India or any entry of coming back of this witness to India. Simply by placing the photocopy of the passport is not per-se admissible, unless and until it is proved by cogent and legal evidence. Further Nirmal Singh who is also admitted to be the relation of Sohan Qadri stated in his examination-in-chief that he cannot say whether Sohan Qadri was present on 02.05.1994 at the time of registration of the sale deed (Exhibit P.A). As such, he has not denied that he was not abroad.

Keeping in view the facts and circumstances of the case, narrated above, the only question which requires determination in this case is as to whether Sohan Qadri complainant (P.W.2) was present in India on the relevant date i.e on 2.5.1994, when the sale deed in question was got registered because, otherwise, the execution of the sale deed has been admitted by the accused, as noticed above. The above view taken by the trial Judge that there is no positive evidence on the file that Sohan Qadri (complainant) was not in India on the relevant date, is contrary to the evidence on record. Sohan Qadri (P.W.2), at the time of his deposition in the trial Court had brought his passport and it is mentioned in his examination-in-chief that in the passport there was the entry dated 22.4.1994 showing the departure of the complainant abroad and his arrival back in India on 17.5.1994. Photo-copy of the passport showing these entries is Exhibit P.B on record. Thus, there remains no doubt that complainant Sohan Qadri was not in India on 2.5.1994. Pawan Kumar, Patwari (P.W.3) has stated that on 2.5.1994 he had handed over the copy of the ''Fard Jamabandi'' of the land of the complainant to accused-respondent Avtar Singh after charging the requisite fee of Rs. 5/-. The photo copy of this receipt (Exhibit P.W.3/A) bears overleaf the signatures of accused-respondent Avtar Singh. Jatinder Kumar, Registry Clerk office of Tehsildar, Phagwara (P.W.4) had brought the record in respect of registration deed No. 342 dated 2.5.1994 proving that the sale deed dated 2.5.1994 (Exhibit P.A and Exhibit P.W.4/1) was executed in favour of accused - respondent Manjit Singh (since deceased) pertaining to the land of complainant Sohan Qadri. Accused-respondent Avtar Singh was present on behalf of Manjit Singh at the time of registration of the sale deed. Accused-respondent Niranjan Dass, who was Lambardar, had identified the fake person who had appeared for Sohan Qadri (complainant) before the Sub Registrar, Phagwara. He identified the signatures of accused-respondent Niranjan Dass as he had seen him signing. The said sale deed was registered by the then Sub Registrar, Phagwara Gurcharan Singh. Jatinder Kumar (P.W.4) identified the signatures of the Sub Registrar on the sale deed, the original of which has been exhibited as Exhibit P.A and P.W.4/1. Suresh Chander Narang, Notary Public, Phagwara(P.W.5) deposed that on 2.5.1994 one person came to him along with an affidavit in the name of complainant Sohan Qadri. The said person put his signatures on the said affidavit as Sohan Qadri. He was identified by Niranjan Dass (accused-respondent). He further stated that he had attested the affidavit on the identification of accused-respondent Niranjan Dass. A photo copy of the said affidavit is Exhibit P.W.5/1 on record.

Insofar accused-respondent Chander Pal, he had scribed the said sale deed without verifying the fact whether the person who was executing the sale deed was a genuine one or not. In his statement recorded u/s 313 of the Code of Criminal Procledure, he stated that I did not know the parties and that he had scribed the sale deed on the asking of the parties who were not known to him earlier. His explanation smacks of his conspiracy with the other accused in depriving complainant Sohan Qadri of his valuable property when he (Sohan Qadri) was not in India.

No doubt, Chanan Singh, Office-Qanungo, Tehsil Sultanpur Lodhi District Kapurthala, while appearing in Court did not support the case of the prosecution and was cross-examined by the State counsel before the trial Court after getting him declared hostile, but a verdict of acquittal cannot follow the moment the witnesses turn hostile and dispensation of justice is not dependant upon the witnesses who make efforts to hold the law to ransom. Once the prosecution case is established on record by the other cogent and trustworthy evidence led by the prosecution, non-supporting of its case by the witnesses who appeared to have been won over by the accused does not at all affect the prosecution case. In this case, by the cogent and trustworthy evidence led by the prosecution, discussed above, it stands proved on record that on the date when the sale deed in question was got executed, Sohan Qadri (complainant) was not in India and some fake person was produced before the Sub Registrar as complainant Sohan Qadri.

The evidence led by the prosecution, discussed above, establishes in certain terms that the accused-persons had cheated complainant Sohan Qadri by producing some fake person in place of the complainant before the Sub Registrar; that the accused had cheated the complainant by dishonestly inducing delivery of his property; that they (accused) had forged the sale deed in question; that they used the forged sale deed as genuine knowing fully well to believe that it was a forged document; and that they committed the said offence by hatching a criminal conspiracy between themselves.

In these circumstances, I have no hesitation in holding that the accused-respondents have committed the offence punishable under Sections 419, 420, 465, 471 and 120-B of the Code for which they were charged by the trial Court.

In view of the above, the impugned judgment acquitting the accused-respondents under Sections 419, 420, 465, 471 and 120-B of the Code is set aside. Accused-respondents Avtar Singh, Niranjan Dass and Chander Pal are convicted under Sections 419, 420, 465, 471 and 120-B of the Code. u/s 419 of the Code, they are sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 2,000/- each, in default whereof to undergo further rigorous imprisonment for one month; u/s 420 of the Code, they are sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 4,000/- each, in default whereof to undergo further rigorous imprisonment for two months; u/s 465 of the Code, they are sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/- each, in default whereof to undergo further rigorous imprisonment for fifteen days; u/s 471 of the Code, they are sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/-each, in default whereof to undergo further rigorous imprisonment for fifteen days; and u/s 120-B of the Code, they are sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/- each, in default whereof to undergo further rigorous imprisonment for fifteen days. All the substantive sentences awarded to accused-respondents Avtar Singh, Niranjan Dass and Chander Pal shall run concurrently.

Accused-respondents Avtar Singh, Niranjan Dass and Chander Pal are ordered to be taken into custody forthwith to serve the sentence imposed upon them. They will, of course, be entitled to set off for the period they remained in custody during investigation or trial. Necessary information in this regard be sent to the Chief Judicial Magistrate, Kapurthala.