Lambodar Singh v. The State Of Bihar

Patna High Court CR. REV. No.612 of 2013 (3) dt.25-09-2013 2 as also slapped fine appertaining to Rs.500/- in default thereof to undergo imprisonment for two months additionally with a direction to run the sentences concurrently as well as the judgment dated 23.07.2012 passed by Adhoc Additional Sessions Judge- VIII, Purnea in Cr.Appeal No.84 of 2001/01 of 2011 whereby and whereunder the appeal has been dismissed upholding the judgment of conviction and sentence rendered by the learned Lower Court as disclosed above.

3. Abodhi Paswan, the complainant filed complaint petition disclosing therein that he happens to be under Raiyat with regard to Khesara No.60 corresponding to Khata no.133 area 1 acre 28 decimal whereupon he also filed a case under Section 48D of the B.T.Act before the C.O., Barhara and the same was decided in his favour on 24.07.1994. Later on, he came to know that the aforesaid order has been challenged by Gopal Mandal claiming himself to be the owner of the land having purchased it from recorded owner Palakdhari Singh vide sale deed dated 22.06.1961. He also came therefrom that aforesaid Gopal Mandal had also taken a plea that Abodhi Paswan had executed registered Ladabi on 14.10.1961 in his favour. Then he took out the certified copy of Ladabi from his Registry Office and found the status of petitioner to be identifier while others were witnesses to the aforesaid Patna High Court CR. REV. No.612 of 2013 (3) dt.25-09-2013 3 document. It has further been submitted that the aforesaid document happens to be forged and fabricated one and further the same was executed by way of impersonating the complainant. It has also been submitted that the complainant used to sign while the Ladabi containg, LTI and that is sufficient to infer that the document happens to be forged and fabricated.

4. The aforesaid complaint was subject to an enquiry under Section 202 of the Cr.P.C. and after concluding the same vide order dated 01.07.1996 petitioner along with others were summoned to face trial for an offence punishable under Sections 465, 467 and 468 of the IPC and having appearance of the petitioner along with others, the trial commenced and concluded in a manner, the subject matter of instant revision.

5. After perusal of the Lower Court Record along with the successive judgments, it appears that the learned Lower Court did not apply its judicial mind with regard to facts and circumstances of the case to trace out whether the offences so alleged is made out or not. Four witnesses have been examined on behalf of the complainant, out of whom, P.W.1 is Ram Autar Paswan who had deposed with regard to status of the complainant as Bataidar over the land as well as having the land in his possession. Therefore, this witness has nothing to say relating to Patna High Court CR. REV. No.612 of 2013 (3) dt.25-09-2013 4 the document in question, the Ladabi one. P.W.2 Jhojhai Paswan had also deposed in same manner without putting any sort of his opinion relating to forgery of Ladabi. P.W.4 is the formal witness who had proved the rent receipt happens to be formal in nature. Now remains the evidence of P.W.3 the complainant who had narrated the event whatever he had incorporated in the complaint petition. Neither the certified copy of the Ladabi has been brought up on record nor there was any sort of prayer on behalf of the complainant under Section 91 of the Cr.P.C. to direct the accused Gopal Mandal to produce the original Ladabi and got it examined by the handwriting expert to suggest that the L.T.I. having over the Ladabi does not belong to him. Not only this, there happens to be utter failure on the part of the prosecution even having the aforesaid Ladabi brought up on record on behalf of the defence by way of examining four D.Ws. including the petitioner and others in terms of Section 315 of the Cr.P.C. that means to say the petitioner including others being an accused have themselves volunteered before the Court as well as got the Ladabi deed exhibited. Even in that circumstances it was expected at the end of the complainant to pray before the Court for having the Ladabi deed properly examined by the handwriting expert. That means to say in absence of aforesaid connecting link, one cannot infer that Patna High Court CR. REV. No.612 of 2013 (3) dt.25-09-2013 5 the document in question means the Ladabi dated 24.10.1961 having in favour of accused Gopal Mandal was an out come of impersonation as well as is a forged document. Forgery is defined under Section 463 of the IPC. “463. Forgery.—Whoever makes any documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.” The first criteria happens to be who ever makes any false document, and the making of a false document has been defined under Section 464 of the IPC which runs as follows: “464. Making a false document.—[A person is said to make a false document or false electronic record— First—Who dishonestly or fraudulently— (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any [electronic signature] on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], With the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly—Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed Patna High Court CR. REV. No.612 of 2013 (3) dt.25-09-2013 6 with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]”

6. Without having examined of the Ladabi in question by a handwriting expert, it happens to be mere an assumption of complainant which would not take place the factum proved has been defined under Section 3 of the Evidence Act which read as follows:- “A fact is said to be proved when, after consideration the matter before it, the Court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

7. From the evidence it is evident that complainant had not claimed the document was created in his presence. None of the witnesses have deposed like so. Then in that event the only course available to the complainant was to get the document examined by the handwriting expert wherein he failed. As such, for want of conclusive evidence on this score, one cannot opined that act of for forgery is proved.

8. Therefore, the consequent finding of the successive Patna High Court CR. REV. No.612 of 2013 (3) dt.25-09-2013 7 Courts with regard thereto happens to be non-tenable in the eye of law. Accordingly, both the judgments are set aside. Revision is allowed. Petitioner is under custody, hence he is directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-