BRIG. SUKHJEET SINGH (RETD.) MVC v. THE STATE OF UTTAR PRADESH & Ors.

HELD: 1. The facts indicate that the trust is admittedly the owner of agricultural land in Village Bichaie. The complainant has been in possession of large number of agricultural lands as thekedar of the trust since 1975, according to his own case, which he even mentioned in the First Information Report. The application under Section 391 Cr.P.C. was made in the Appellate Court to accept certified copy of the Trust Deed dated 18.10.1989 and the Resolution No. 112 dated 18.10.1989 and permitting the appellant to prove the said document by leading oral evidence. The reference of Trust Deed has been made by the trial court in its judgment dated 07.10.2013. The trial court in its judgment had observed “the copy of the Trust Deed dated 18.10.1989 is available on record being paper No.30Kha/46”. The trial court further has observed that “it is pertinent to mention here that the accused had not proved the Trust Deed dated 18.10.1989 by way of evidence”. [Para 17] [473-C-E]

2. What was available on the record was the photocopy of the Trust Deed. Due to non-proving of the Trust Deed, the trial court has not adverted to the Trust Deed and the Resolution, which were relevant to understand and know the conduct of the appellant and other trustees for entering in the MOUs for sale of A B C D E F G H 460 SUPREME COURT REPORTS [2019] 2 S.C.R. agricultural land. The facts as noted above indicate that prosecution started recording its evidence on 17.11.2000, which was completed on 21.11.2012. A period of twelve years was taken by the prosecution to lead its evidence and after 21.11.2012, the judgment was delivered on 07.10.2013. The appellant was convicted for offences under Section 420/34 IPC accepting the charge that complainant was cheated with regard to sale of agricultural land of the Trust. [Para 18] [473-F-G]

3. A Criminal Appeal was filed by appellant in the Court of the Session Judge, Rampur. Thereafter, application under section 391 Cr.P.C. (14 Kha) was filed for placing on record the said Trust Deed dated 18.10.1989 and Resolution No.112. Another application under section 391 Cr.P.C. (17 Kha) was filed praying for summoning the witnesses to prove the Trust Deed dated 18.10.1989 and Resolution No.112. Both the applications came for consideration before the District Judge, who by its order dated 02.11.2015 rejected both the applications. Against the order dated 02.11.2015, an application under section 482 Cr.P.C. was filed in the High Court by the applicant, which has been rejected by the High Court vide its impugned judgment dated 17.01.2017. The reasons given by the High Court and relied by the High Court in rejecting the application filed under Section 482 are unfounded. The first observation of the High Court is that filing of additional evidence at such a belated stage. In the facts of the present case this Court does not approve the above observation. When the Appellate Court has been given power to lead additional evidence, the observation that it is belated stage was uncalled for. Appellant was convicted on 07.10.2013 and appeal was immediately filed on the next date, i.e. 08.10.2013. It was not even mentioned by the High Court that there is anything on record to indicate that appeal was being heard and at this stage the application under Section 391 Cr.P.C. was filed, calling the application as filed at belated stage itself was unjustified. Further, the observation of the High Court that application was filed with some ulterior malafide motive is not acceptable. The appellant had already been convicted by the trial court, the charge was cheating the complainant with regard A B C D E F G H BRIG. SUKHJEET SINGH (RETD.) MVC v. STATE OF U.P. 461 to sale of agricultural land of the trust. The second Trust Deed dated 18.10.1989, which was on record and referred to by the trial court and was refused to look into on the ground that it was not proved by the appellant. Filing of the application before the High Court to accept the certified copy of the Trust Deed and the Resolution and to permit the appellant to lead evidence can in no manner be said to be malafide motive of the accused, who had been convicted. In the appeal, he has right to take all the grounds and also lead additional evidence, which in accordance with the Appellate Court is necessary in deciding the appeal. As noted above, this Court has laid down that when it becomes necessary to take additional evidence, cannot be enlisted or enumerated in any fixed formula. It depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not. Present is a case where it was due to lapse on the part of the appellant and his counsel that the second Trust Deed, which was basis for taking steps for sale of the land could not be proved. [Paras 3.11, 3.12, 3.13 and 19] [466-F; 467-A-B, C-D; 474-B-G]

4. The second observation of the High Court is that the application to take additional evidence at the appellate stage is filed by appellant for delaying the decision of the appeal to eternity, When prosecution took twelve years’ time in leading evidence before the trial court and the judgment by trial court was delivered on 07.10.2013, the appeal was filed on 08.10.2013, how can appellant be castigated with the allegation that he intended to delay the appeal to eternity. The observation was unduly misplaced and incorrect. When Statute grants right to appeal to an accused, he has right to take all steps and take benefit of all powers of the Appellate Court in the ends of the justice. In a criminal case Appellate Court has to consider as to whether conviction of the accused is sustainable or the appellant has made out a case for acquittal. The endeavour of all Courts has to reach to truth and justice. The case of the complainant also has been that it is only after execution of the Trust Deed that talks regarding sale of the agricultural land was initiated. Trust Deed and the Resolution, which are foundation and basis for the start of the process of the sale of the land were A B C D E F G H 462 SUPREME COURT REPORTS [2019] 2 S.C.R. documents, which ought to have been permitted to be proved to arrive at any conclusion to find out the criminal intent, if any, on the part of the appellant. [Para 20] [474-G-H; 475-A-D]

5. It is further relevant to notice that in other case filed by ‘F’, who was also one of the purchasers and lodged the FIR on same allegations. In the said case, the second Trust Deed dated 18.10.1989 was filed and proved and ultimately, the appellant has been acquitted in the said case by judgment dated 30.11.2015, which has also been brought on record. In the other criminal case, which was on the same allegations and which were also based on same MOU regarding sale of agricultural land, where amount of Rs.75,600/- was also paid by ‘F’, on the same date, the Trust Deed was filed and proved relying on which acquittal of the appellant has been recorded. It has been further submitted by the appellant that reference of the judgment of the acquittal dated 30.11.2015 has also been made before the High Court, but High Court did not advert to the said judgment. [Para 21] [475-E-F]

6. In the facts of the present case, Appellate Court committed error in not exercising jurisdiction under Section 391 Cr.P.C. in accepting the second Trust Deed dated 18.10.1989 and the Resolution No.112 dated 18.10.1989 and refusing the appellant to lead evidence to prove the documents. [Para 22] [475-G-H]