Dismissed

Sita Ram v. The State Of Jharkhand And Ors.

Jharkhand HC6 Sept 2017Cr.M.P./368/2017

Case brief

AI extract

What is this about?

Petition for special leave to appeal against acquittal was dismissed. The High Court held that the High Court below correctly acquitted the accused as allegations of forgery were mired in controversy regarding prior litigation and no injury was recorded. Land dispute remains open.

What did the court decide?

Leaves to appeal were refused and the instant petition was dismissed against the acquittal of the accused.

Sita Ram Vs The State Of Jharkhand And Ors. — Cheating and Forgery | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 368 of 2017

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Sita Ram .....Petitioner

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Vs.

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The State of Jharkhand

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Samarjit Kaushlesh

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Satish Kaushlesh

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Hari Gowsai

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.....Opposite parties

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CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE B.B.MANGALMURTI

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For the Petitioner : M/s. Rashmi Kumari & Priti Rani, Advs For the Opp. Party-State : Mr. Awnish Shankar, APP For the Opp. Party nos. 2 to 4 : M/s. Bharat Kumar, Raj Kumar Prasad, Advs.

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6/6.9.2017

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Heard learned counsel for the parties.

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Petitioner has sought leave to appeal against the judgment of acquittal dated 23^rd December, 2016 passed by learned Sessions Judge, Koderma in Criminal Appeal No. 53 of 2015 arising out of Complaint Case no. 495/2004 (T. R. No. 11/2015) under Sections 323, 465 and 504 of Indian Penal Code. Learned Trial Court had convicted the accused/opposite party nos. 2 to 4 herein for the offences under Sections 323, 465, 504 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for six months under Section 323 of the Indian Penal Code, Rigorous Imprisonment for one year both under Sections 465 and 504 of the Indian Penal Code. The sentences were to run concurrently.

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Complainant/petitioner herein instituted a complaint case inter alia with the following allegations against the accused persons. According to them, mother of the complainant had purchased 1 1/4^th decimals of land in Plot no. 4163 appertaining to Khata no. 111 from Budhlal Kahar vide sale deed no. 1840 dated 20^th November, 1937. By a power of attorney, she transferred the land in the name of the complainant. Proceedings were initiated and converted to under Section 145 Cr. P. C

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Being aggrieved by the order passed in the said proceedings, the

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matter was taken in revision before learned District Judge and thereafter traveled to High Court. The Hon'ble High Court disposed of the matter directing the parties to file civil proceeding before the competent court of jurisdiction. Special Leave Petition preferred by the complainant before the Apex Court was also dismissed. Petitioner alleged that the accused persons started doing construction over his land without the consent of the complainant. The Court had never allowed them to undertake construction. On 24^th October, 2004, when the complainant forbade the accused persons, they made life threatening comments and the accused persons, Satish Kaushlesh and Hari Gowsai pushed the complainant with the help of Danda and threatened him not to institute any civil suit. The Police Station refused to register a case. It is alleged that the accused persons did not have any papers regarding the land nor were they in possession over it. Any papers produced by them must be forged and fabricated. It was further alleged that they have committed interpolation in the mortgage deed after withdrawing the same from Cr. Revision no. 257/1993, in which it was filed. After inquiry, learned Judicial Magistrate, Koderma summoned the accused persons to face trial under Sections 323, 465 and 504 of the Indian Penal Code. They pleaded not guilty to the substance of accusations and trial commenced thereafter.

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5 witnesses were examined by the complainant. C.W.-1, Sita Ram-complainant; C.W.-2, Ratan Ram maternal nephew, C.W.-3, Nasiruddin, C.W.4, Bhagwat Prasad and C.W.5, Cholo Prasad, who are formal witnesses. After closure of evidence of complainant, statement of the accused persons was recorded under Section 313 of Cr. P. C. They denied the allegation.

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1 defence witness, Taslimul Haque, Assistant Manager of Reserve Bank of India, Kolkata was examined on their behalf, who has proved register for allotment of trainee flats and attendance register of training institute, which have been marked as Ext. A and Ext. B respectively. Apart from that certified copy of order-sheet in Criminal Revision No. 257/1993 and certified copy of judgment passed in the

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said criminal revision are marked as Ext. C and D respectively.

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Learned trial court upon consideration of the material evidence and submission of the parties, was satisfied that ingredients of Sections 323, 465 and 504 of the Indian Penal Code were established against the accused persons, hence, they were convicted and sentenced to undergo imprisonment as noted above.

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The accused/convicts went in Criminal Appeal no. 53/2015 before learned Sessions Judge, Koderma, who by the impugned judgment dated 23^rd December, 2016 has acquitted them of all the charges.

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Learned counsel for the petitioner has taken pains to show that ingredients of Section 465 i.e., forgery in the mortgage deed were clearly established, as it was the accused persons in case no. 14/1992, who had made endorsement on the back side of the mortgage deed as is apparent from Ext. 7/2. When the matter traveled in Criminal Revision no. 257/1993, certified copy of the deed was again obtained by the complainant and he found some endorsement on the back side of deed as it appears from Ext. 7 and 7/1. According to the complainant, the accused persons had, after withdrawing the certified copy of the mortgage deed from the case records, interpolated in the document and filed the same in the court of Sessions Judge, Koderma. Complainant had adduced the certified copy of the order dated 11^st September, 2003 passed in Criminal Revision No. 257/1993 as Ext. 6 and also substantiated the allegations from the documents that are Exts. 7, 7/1, 7/2 i.e, mortgage deed. The trial court has given considered findings after proper appreciation of evidence on this point, which should not have been interfered by the Appellate Court. Learned counsel has also supported the findings of trial court on the allegations relating to voluntarily caused hurt under Section 323 of the Indian Penal Code. It is submitted that the complainant-C.W-1 and his maternal nephew both have supported the incidence. However, C.W.-2 had not said anything about injury upon the complainant as a result of such assault. The appellate court, therefore, committed serious error in reappreciating the

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evidence of the parties while acquitting the convicts/opposite parties from the serious charges under Section 465 of the Indian Penal Code and other sections also.

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Learned counsel for the opposite party nos. 2 to 4 have supported the impugned judgment of acquittal. He has pointed out that the material evidence on record does show subsisting civil dispute between the parties. The complainant had unsuccessfully challenged the order of High Court in a proceeding arising out of Section 145 of Cr. P. C. upto the Apex Court. Pursuant to the observations of Hon'ble High Court, in fact, a Title Suit has also been filed being Title Suit No. 4 of 2005 before the competent civil court for seeking a declaration of right, title and interest over the land in question on the part of the complainant. Averments made in the plaint also dislodge the allegations relating to construction on the part of the opposite parties over the disputed piece of land. A complaint has been filed after some delay without any cogent explanation. The allegation of assault is also not corroborated by any independent witness or other cogent material. There are no injuries on the body of the complainant. He further submits that the plea of interpolation is unfounded. The entry on the mortgage deed, did not entail any benefit to the accused persons as according to their case the mortgage had been redeemed in the year 1986 much before the institution of proceedings under Sections 144/145 Cr. P. C. The complainant has in an oblique way tried to implicate the opposite parties in a criminal case though the dispute is essentially civil in nature. Therefore, the findings of appellate court are proper and deserves no interference.

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We have considered the submissions of parties and gone through the impugned judgments of trial court and appellate court. We may notice at the outset from the discussions made by learned courts below that the parties have been litigating in respect of a claim of title, interest and possession over the piece of land bearing Plot no. 4163 under Khata no. 111 Area 1 ¼ decimal at Koderma. Pursuant to the observations made by this Court in Cr. M. P. No. 04 of 2004 arising out of Criminal

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Revision no. 257 of 1993 and after dismissal of S.L.P. presented by the complainant against it, in fact, Title Suit no. 4 of 2005 has been instituted by the complainant for a declaration of his right, title and interest over the land in question. Learned Appellate Court has considered the evidence on record and found that allegations of assault have not been corroborated by the complainant through any independent witness though the incidence took place by the side of Main Patna Ranchi Road in a broad daylight. The complainant has not stated the time of occurrence in the complaint which is a vital error, though in his cross-examination, the complainant stated it to be at abound 12 in the noon. The other complainant witness no. 2 who is maternal nephew has, in his statement, not stated about any injury on the person. Rest of the three witnesses were formal witnesses. Learned appellate court had therefore reason to come to an opinion that allegation of assault were not made out. Learned appellate court has also analysed the evidence in relation to the allegation of interpolation in the mortgage deed as Ext.-7/2

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Learned appellate court on consideration of the material evidence taken note that the accused/opposite party no. 2 was examined in Case No. 14/1992 on 21^st July, 1993 and on that very date, he had deposed before the court that in the year 1975, the house in question was mortgaged with Mahadeo Prasad Lahakar. In this regard, deed of mortgage was prepared and subsequently mortgage was redeemed. In his cross-examination, he has stated that he had returned the money of mortgage and there is endorsement of this fact on the back side of the mortgage deed. The learned appellate court was also of the opinion that the certified copy of the mortgage deed was taken previously by the opposite party no. 2 from the court of Executive Magistrate. If there was no endorsement on the deed in question at that time then why did the complainant not put any question on this witness at that very time on 21^st July, 1993. The mortgage deed was exhibited in the court of Executive Magistrate on the same day, if there was any endorsement on

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the back side of the deed the complainant should have raised this issue. The learned Sessions Court was satisfied with the explanation furnished by the opposite party that the necessity to withdraw the document from the sessions court and subsequently filing it again arose as the parties were fighting litigation in several cases not only before district court but also before Hon'ble Court and other courts where those documents were required. The appellate court was also of the view that by incorporating these facts on the back side of the mortgage deed no fruitful gain would have been obtained in favour of the appellant/convicts. It is quite possible that at first occasion, counsel for the complainant had obtained certified copy of only front page of the mortgage deed and on subsequent occasion i.e., on 15^th September, 2003, he would have taken certified copy of both the sides of mortgage deed and as such he was under impression that interpolation has been done. The learned appellate court therefore was of the view that allegation of serious offence of forgery, in such circumstances, were not clearly established. Learned appellate court also took into account that serious land dispute is persisting between the parties. There was absence of injury on the person of the complainant. Therefore, he interfered in the findings of the conviction recorded by the learned trial court.

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Upon consideration of submission of the parties and scrutiny of the impugned judgments of learned appellate court and learned trial court, we are satisfied that the petitioner has not been able to make out a case for grant of leave to appeal. The allegation of a criminal offence are required to be proved beyond all reasonable shadow of doubt. If the charge relating to forgery specifically is mired in controversy relating to an allegation of an endorsement made way back in the year 1993 in Case No. 14 of 1992, the findings of appellate court cannot be said to suffer from such perversity which entitles the petitioner to seek leave to appeal in such circumstances. There is a presumption of double innocence in cases of acquittal of an accused. The parties are otherwise also seriously contesting a civil suit in respect of the land in question.

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Counsel for the petitioner has submitted that all issues relating to

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right, title, interest and possession may be left open to be agitated in the pending civil suit. It goes without saying. However, we refrain from making any observation thereupon.

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Accordingly, the instant petition is dismissed.

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(Aparesh Kumar Singh,J)

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(B.B.Mangalmurti,J)

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Sita Ram v. The State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Sita Ram v. The State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

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