Complainant's acquittal appeal against appellate court's acquittal of accused of forgery and cheating charges involving an allegedly forged power of attorney used to obtain bank loan. Specimen thumb impression not duly proved; expert evidence lost significance. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR Acquittal Appeal No.81 of 2015
Murari Agrawal, S/o Late Rameshwar Lal Agrawal Aged About 60 Years, R/o Jwahar Nagar, P.S. Maudhapara, Raipur, Tehsil And District Raipur, Chhattisgarh ---- Appellant
Versus
For Appellant: Shri Ravindra Sharma, Advocate. For Respondent No.1/State:Ms. Shubha Shrivastava, PL. For Respondent No.2: Smt Fouzia Mirza, Sr. Advocate along with Shri Navin Shukla, Advocate. For Respondent No.3: Shri Vivek Tripathi, Advocate.
Single Bench: Hon'ble Shri Deepak Kumar Tiwari, J Judgment On Board
05.01.2024
2
acquitted the accused persons of the charges under Sections 467 and 468 IPC and convicted accused/Respondent No.2-Amin C Thorani for the offence under Sections 420/120-B and 471 IPC and sentenced him to undergo SI for 2 years with fine of Rs.1,000/- and SI for 3 years with fine of Rs.2,000/- respectively and Respondent No.3-Manoj Kumar Pathak @ Raju Pathak was convicted for the offence under Section 420/120-B IPC and sentenced to undergo SI for 2 years with fine of Rs.1,000/- with usual default stipulations. 2. Prosecution case in brief is that Appellant/Complainant Murari Agrawal (PW-1) has filed a written complaint dated 10.10.2001 (Ex.P-1) before PS Gole Bazar stating that on 22.03.2001, he came across a news published in newspaper ‘ Danik Bhaskar’ that the land bearing Khasra No.226/7 admeasuring 0.202 hectares at Raipur has been fraudulently mortgaged by using forged power of attorney of Complainant by Respondent No.2- Amin C Thorani though vide sale deed (Ex.P-8), the said land was purchased in the joint name of Samir Thorani, brother of accused/Respondent No.2Amin C. Thorani. It is alleged that there was 10% share of the Appellant/Complainant-Murari Agrawal in the said land and 90% of the brother of accused/Respondent No.2-Amin C. Thorani. Upon receipt of such information, Appellant/Complainant-Murari Agrawal raised an objection and it has been revealed that forged power of attorney (Ex.P-5) was executed in favour of accused/Respondent
3
No.2 accused/Respondent No.2-Amin C. Thorani and accused Respondent No.3-Manoj Kumar Pathak and PK Agrawal were the witnesses of the said document and accused/Respondent No.2Amin C. Thorani has, in a fraudulent manner, got registered the general power of attorney (Ex.P-5) on 24.04.1999 by placing some other person and used such document to cheat Appellant/Complainant Murari Agrawal for getting loan of Rs.1,50,00,000/- from State of Bank of Hyderabad by showing the same as genuine. Based on such allegations, after completion of investigation, the charge sheet has been filed. One of the accused persons PK Agrawal has absconded and accused/Respondents No.2 & 3 have abjured their guilt and claimed to be tried.
4
and 71/2014, which were allowed and said accused/Respondents were acquitted of the remaining charges. Hence, this Appeal by the Appellant/Complainant.
5
which is based on the said document (Ex.P-21) itself is demolished and in such circumstances, the expert opinion is of no value. They further submit that the evidence shows that the Appellant/Complainant himself has executed the said power of attorney (Ex.P-5) and accused/Respondent No.2 & 3 have never used such document and neither the land was mortgaged nor any loan was advanced by the Bank, therefore, the offence of cheating has not been made out. Smt Mirza submits that the trial Court has acquitted accused/Respondent No.2-Amin C. Thorani of the charges under Sections 467 and 468 IPC and wrongly convicted him under Sections 420/120-B and 471 IPC and the appellate Court has corrected the said error, therefore, there is no perversity in the finding recorded by the learned appellate Court. She further submits that even the land was subsequently sold on 24.12.2008 by the Appellant/Complainant himself to M/s Shakuntala Builders vide Ex.D-5 and if such land was mortgaged, then the sale could not have been possible, as such, there is no substance in the Appeal and prays to dismiss the same.
6
been identified by accused/Respondent No.3-Manoj Kumar Pathak, S/o Jagdish Pathak and absconded accused PK Agrawal, S/o Mohanlal Agrawal, has executed power of attorney (Ex.P-16) in favour of accused/Respondent No.2-Amin C. Thorani, who, in para4 his cross-examination, has categorically stated that in Ex.P-16, signature of Appellant/Complainant Murari Agrawal was present and at the time of execution, finger print impression was also obtained in the register.
7
presence and his information is based on the said document and the specimen signature in questioned document register of SubRegistrar Office (Q-1) in which, at the time of execution, though impression of Appellant/Complainant was obtained but the same is not matched with the specimen signature (Ex.P-21). The prosecution has utterly failed to prove the specimen signature of the Appellant/Complainant during trial and the material witnesses have not been examined, therefore, the statement of VS Rajput (PW-7) with that regard has lost its significance. Document Ex.P-5/ Ex.P-16, the power of attorney which, as alleged by the Appellant/ Complainant, is a forged one. From the aforesaid appreciation, it appears that the prosecution has failed to establish the fact that the said document is a forged one, therefore, on the basis of such document, if any action was taken by the accused person before the Bank when the document itself was not found to be forged, then there is probability that the document was duly executed by the Appellant/Complainant as he and his brother have jointly purchased the said property and 90% of the share belongs to brother of accused/Respondent No.2-Amin C. Thorani in whose favour, the power of attorney has been executed and only 10% share is of the Appellant/Complainant. Further, Ku. Sunand Dhenge (DW-1) has given report (Ex.D-1) that the said power of attorney was duly executed by the Appellant/Complainant.
8
“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”
Sd/-
(Deepak Kumar Tiwari) JUDGE
Priya
2 issues framed by the court
Whether the appellate court erred in acquitting the accused of forgery and cheating charges relating to an allegedly forged power of attorney.
Whether the finger print expert opinion based on an unproved specimen thumb impression could sustain a conviction.
Colour shows how this judgement treated each authority
Jafarudheen and Others vs. State of KeralaRelied on¶11
(2022) 8 SCC 440 · Who else cites this
4 provisions across 2 enactments
Murari Agrawal
State Of Chhattisgarh Through D.M. Raipur, Chhattisgarh
Amin C Thorani
Manoj Kumar Pathak @ Raju Pathak
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
