High Court of Chhattisgarh
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.04.29 18:26:57 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRA No. 318 of 2016 1 - Devnath Yadav S/o Bishahu Lal Yadav Aged About 47 Years R/o Kududand Near Mata Chouk, Ward No. 2, P.S. Civil Line, Bilaspur, Chhattisgarh. Versus --- Appellant 1 - State of Chhattisgarh Through Police Station Civil Line District Bilaspur, Chhattisgarh. --- Respondent(s) CRA No. 287 of 2016 1 - Tularam Patel S/o Late Dhaja Ram Patel Aged About 37 Years R/o Village Khaira, Police Station - Seepat, District - Bilaspur Chhattisgarh. 2 - Sitaram Kaiwarth S/o Santram Kaivarth Aged About 37 Years R/o Village - Khaira, Police Station - Seepat, District - Bilaspur Chhattisgarh . Versus ---Appellant 1 - State of Chhattisgarh Through The Police Station Civil Line District - Bilaspur Chhattisgarh. --- Respondent(s) CRA No. 294 of 2016 1 - Ashok Dhruw S/o Chhedilal Dhruw Aged About 43 Years R/o Village Changori, Police Station Akaltara, District Janjgir Champa, Chhattisgarh. Versus ---Appellant 1 - The State of Chhattisgarh Through Station House Officer, Police Station Civil Line, Bilaspur, District Bilaspur, Chhattisgarh. ____ For Appellants For State --- Respondent(s) : : Shri Abhishek Sinha, Sr. Advocate along with Shri Prateek Sharma, Shri Anil S Pandey and Shri Nikhil Singh, Advocates Shri Atanu Ghosh, Dy. Govt. Advocate. 2 Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment Reserved on 06.03.2025 Judgment Delivered on 29.04.2025 1. Since these appeals arise out of same crime and common judgment of conviction, they are being heard and decided together by this common judgment. 2. These three appeals arise out of judgment dated 18.02.2016 passed by the 6th Additional Sessions Judge, Bilaspur, in Sessions Case No.130/2014 whereby the appellants have been convicted and sentenced in the following manner: Appellant/Accused Conviction U/s Sentence Devnath Yadav 419 IPC (CRA No.318 of 2016) 467/34 IPC 468/34 IPC Tula Ram Patel (CRA No.287 of 2016) 419/34, 467/34 & 468/34 IPC 471/34 IPC Sita Ram Kaivarth (CRA No.287 of 2016) 419/34, 467/34 & 468/34 IPC Ashok Dhruw (CRA No.294 of 2016) 419/34, 467/34 & 468/34 IPC RI for 1 year and fine of Rs.200/-, in default of payment of fine, additional RI for 2 months. RI for 3 years and fine of Rs.200/-in default of payment of fine, additional RI for 2 months. RI for 3 years and fine of Rs.200/-in default of payment of fine, additional RI for 2 months. RI for 1, 3 and 3 years with fine of Rs.200/- each respectively, in default of payment of fine, additional RI for 2 months for each offence. RI for 1 year and fine of Rs.200/-, in default of payment of fine, additional RI for 2 months. RI for 1, 3 & 3 years with fine of Rs.200/- each respectively, in default of payment of fine, additional RI for 2 months for each offence. RI for 1, 3 and 3 years with fine of Rs.200/- each respectively, in default of payment of fine, additional RI for 2 months on each offence. 3.
Legal Reasoning
Brief facts of the case are that, the complainant Mehar Chand Patel, 3 PW-9, was having 8.85 Acres of agricultural land at village Khaira, PH No.19, Tehsil and District Bilaspur. The appellant Tula Ram Patel is an Advocate by profession and was a counsel of complainant in Revenue Case of complainant. Tula Ram took the complainant on the pretext that he has to take surety of an accused in the criminal case and after administering certain intoxicating liquid get the sale deed registered in his own name with respect to his entire 8.85 Acres of land with the collusion of other accused persons who are Patwari, attesting witness and Document Writer by preparing forged sale deed and puttting forged signature of the complainant. The said sale deed in the name of appellant Tula Ram Patel was registered on 23.03.2011. On 23.03.2013 the complainant Mehar Chand made a written complaint to the police station Civil Lines, Bilaspur, that his 8.85 Acres of land got fraudulently transferred by the appellant Tula Ram Patel in his name through the forged sale deed alleged executed by him after by administering intoxicated drink on the pretext that he would be made as surety for an accused in the criminal case and his signature over the registered sale deed is forged. Based on his written complaint Ex.P/7, an FIR Ex.P/16 was registered against the appellant Tula Ram Patel and one Sita Ram who is attesting witness of sale deed for the offence under Sections 420, 328 and 34 IPC. During the investigation, the documents of sale deed, 22 column Form issued by Patwari Ashok Dhruw (co-accused), revenue documents and computerized form were seized vide seizure memo Ex.P/1. The appellant Tula Ram was arrested on 13.10.2014 and his memorandum statement Ex.P/2 was 4 recorded in which he disclosed the entire incident and on the basis of his memorandum statement one Rin Pustika in the name of appellant Tula Ram Patel and Kistbandi P-1 in the name of Tula Ram Patel was sized vide Ex.P/3. The memorandum statement of co-accused Sita Ram Kaiwarty Ex.P/4 was also recorded and based on his memorandum statement one B-1 Khasra in the name of appellant Tula Ram Patel has been seized vide seizure memo Ex.P/5. Spot map and spot Panchnama Ex.P/6 was also prepared by the Nazul Inspector Bilaspur. The original document of Cash Credit Limit of District Co- operative Central Bank, Bilaspur and other receipts and copy of agreement dated 30.04.1998 was seized as the specimen signature of the complainant vide seizure memo Ex.P/8. The disputed sale deed and the specimen signature of the complainant were sent to State Examiner of Questioned Document, State of Chhattisgarh, Police Headquarter, Raipur for its handwriting report along with memo Ex.P/26. The specimen signature of complainant was also obtained which is Ex.P/29. The copy of disputed sale deed is Ex.P/27. After examining the signature made in the said sale deed as well as specimen signatures of the complainant, a report Ex.P/30, 31 and 32 was given by the State Examiner of Questioned Document Raipur in which it was opined that both these documents are in different authorship and signatures are not matched. 4. The statement of witnesses under Section 161 CrPC were recorded. During the investigation, the involvement of other co-accused persons Ashok Dhruw who is Patwari and who issued 22 column form and Devnath Yadav, Document Writer who prepared the sale deed have 5 also been arrested on 13.10.2014. After completion of investigation, charge sheet was filed against the appellants for the offence under Section 328, 420, 467,468,471 and 34 IPC before the Chief Judicial Magistrate, Bilaspur. 5. Since the offence under Section 328 IPC is triable by the court of sessions, the case was committed to the court of Sessions Judge, Bilaspur, from where the same has been transferred to the trial court for its trial. 6. The trial Court has framed charges against the present appellants for the offence under Sections 328/34,420/34, 467/34,468/34 and 471/34 IPC. The appellants denied the charge and claimed trial. 7. In order to prove the charge against the appellants, the prosecution has examined as many as 15 witnesses. The statement of appellants under Section 313 CrPC have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. The appellant Tula Ram Patel would submit that the complainant Mehar Chand has duly registered the sale deed in his favour after obtaining entire sale consideration and to obtain more amount of consideration, the complainant and his family members conspired and lodged a false complaint case against him. He has not committed any offence and he be acquitted. 8. The appellants relied upon documents Ex.D/1 to D/28 in support of his defence. The appellant Tula Ram examined himself as DW-1. Another defence witness DW-2 Akhilesh Pathak was also examined by them. 6 9. After appreciation of oral as well documentary evidence led by the parties, the trial Court has convicted and sentenced the appellants as mentioned in the earlier part of this judgment. Hence these appeals.
Legal Reasoning
10. Shri Prateek Sharma, learned counsel for the appellants Tula Ram Patel and Sita Ram (in CRA No.287 of 2016) would submit that the sale deed got registered on 23.03.2011 whereas the FIR had been lodged on 23.03.2013 i.e. after about two years of registration of sale deed and there is no explanation about delayed lodging of the report. The complainant Mehar Chand Patel have not duly supported his case and he is not aggrieved by the said transaction, but his son Budheshwar, PW-4 is aggrieved by the said transaction as he would not get any property from his father. The witnesses are interested witnesses and their evidence cannot be relied upon for holding conviction of the appellants. He would also submit that after due process of registration of sale deed and after due verification by the registering authorities the sale deed was registered in favour of the appellant Tula Ram Patel and no offence has been committed by the appellants and therefore they are entitled for acquittal. 11. Shri Anil S. Pandey, learned counsel appearing for appellant Ashok Dhruw (in CRA No.294 of 2016) would submit that the appellant Ashok Dhruw is a Patwari who issued 22 column form which was required for registration of sale deed. He is nowhere connected with the alleged offence and under discharging his official duty, he issued 22 column form to the beneficiaries bonafidely. There is no allegation against him that he indulged in fabrication of the sale deed or fraudulently got issued the 22 column form. He was under obligation to issue 22 7 column form on demand made the concerned beneficiaries/land owners. 12. Shri Abhishek Sinha, learned Senior Counsel appearing for appellant Devnath Yadav (in CRA No. 318 of 2016) would submit that the appellant Devnath is a Document Writer and he only scribed the sale deed. He neither personally known the persons of vendor and purchaser nor he insisted or impersonated anyone in place of complainant to put his signature over the sale deed. When he prepared the sale deed, it was produced before the Assistant Registrar for its registration who after due verification under the law got it registered. No incriminating circumstances against the present appellant Devnath Yadav has been proved. Further no witnesses have said that from the act of present appellant Devnath any prejudice is being caused. There was no evidence produced by the prosecution that he has violated any conditions of Chhattisgarh Document Writer Licensing Rules, 1966 (in short, the Rules, 1966). There is no cogent and clinching evidence against the appellant and he is also entitled for acquittal. 13. On the other hand, the counsel for the State supported the judgment of conviction and order of sentence and submitted that Tula Ram Patel is the beneficiary of said sale deed dated 23.03.2011. He was an Advocate by profession and representing the complainant in revenue case. He took him to the office of Registrar on the pretext that he would be a surety of an accused in criminal case and instead of making him surety, forged and fabricated sale deed got registered by putting his forged signature. He obtained 22 column form issued by 8 Patwari Ashok Dhruw, the accused Devnath Yadav scribed the sale deed, the co-accused Sita Ram is the attesting witness of sale deed and accused Tula Ram Patel is the beneficiary in whose name the sale deed was executed. All of them were having common intention to impersonate and cheat the complainant by preparing forged documents. From the report of State Examiner of Questioned Document it has been proved that complainant has not signed the said sale deed and his signature over the sale deed was forged. After execution of sale deed, the accused Tula Ram Patel got mutated the entire 8.85 Acres of land of the complainant in his own name and claimed ownership over the said land by virtue of forged sale deed. But for minor omissions of contractions, the evidence of witnesses are reliable and there is no explanation of the appellants as to how and under which circumstances the sale deed got registered in the name of Tula Ram Patel when the complainant has not signed the same. Even there is no transaction of any consideration amount with respect to alleged sale. The trial court after examining the entire evidence minutely convicted and sentenced the appellants which is absolutely justified and not required to be interfered with and their appeals are liable to be dismissed. 14. I have heard the rival contentions put forth by the counsel for the parties and perused the records. 15. In the present case, the charges against the present appellants are cheating by personation, forgery of a valuable security/document, forgery for the purpose of cheating and using as genuine a forged document. Cheating by personation is having two different contents 9 i.e. "cheating" and "by personation". The cheating is defined in Section 415 of the IPC and cheating by personation is defined in Section 416 of the IPC. The ingredients to constitute an offence of cheating by personation are as follows: “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 416. Cheating by personation.-- A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for or another, or representing that he or any other person is a person other than he or such other person really is.” 16. Section 419 IPC deals with the punishment for cheating by personation, which reads as under: “419. Punishment for cheating by personation.--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 17. It is also necessary to reproduce here the ingredients of forgery of valuable security/document, which is given in Section 467 of IPC, forgery for the purpose of cheating given in Section 468 of IPC and using as genuine a forged document is given in Section 471 of IPC, which are as follows:- “467- Forgery of valuable security, will etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 10 468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record1 forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 471. Using as genuine a forged.--Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.” 18. In the light of above definitions of the alleged offence in the present case against the appellants, this court proceeds to examine the evidence of the witnesses. 19. PW-9, Mehar Chand Patel is the complainant in the case who have stated in his evidence that he was having 19-20 Acres of land at village Khaira and presently having 4 Acres of land. The appellant Tula Ram Patel has requested him that a criminal case has been registered against him and he requires surety in that case and on his request he was ready to be a surety of him. On 23rd November the appellant Tula Ram came and took him to Bilaspur for surety. He took him to Registrar office Bilaspur. When he objected that it is not the High Court, but it is the Registration office then the appellant Tula Ram assured him that all documentation is to be made here only. He did not know as to what document he got prepared there. From Registry office, he took him to his own house at village Khaira and thereafter he left him in his house. The appellant Tula Ram came with a water bottle and he drink a glass of water from that bottle and thereafter he went back to his house. After sometime, he felt giddiness and lost his conscious. His family members took him to doctor for his treatment and he could recover after 4-5 days. After 15-30 days his son Budheshwar asked him as to whether he got executed any sale deed 11 or not, then he replied that he has not executed any sale deed and thereafter his son Budheshwar informed him about registry of his 8 Acres of land, but he denied that he has not sold the said land. Thereafter, they started collecting information about the said transaction and made a complaint to Gram Panchayat Khaira. A village meeting was also convened in which the appellant Tula Ram did not participate. Thereafter, he lodged a report to the police against the appellants which is Ex.P/7. The police seized certain documents from him. At this stage, this witness was declared hostile and have stated that in A to A, B to B, C to C and D to D part of his police statement Ex.P/14 was not given by him and how police has written his statement he did not know. In cross examination, he stated that his full name of Mehar Chand Nayak and he never written his name as Mehar Chand Patel. The report Ex.P/7 got prepared by his son Budheshwar and he is the person who made efforts to gather information about transaction. He also did not know on what date the report Ex.P/7 was made and what are the Khasra numbers, Area or Boundary mentioned in the said complaint. He further states that he did not know as to whether on his complaint the police has recorded his statement, the statement of his wife and son, Tula Ram and Sita Ram or not. He admits that he is having two sons namely Dileshwar and Budheshwar. His wife and his elder son Dileshwar has expired. Chitralekha is his sister with whom he is having property dispute and court proceeding was also initiated. The said court proceeding was continued from 1994 to 1998 and 12 thereafter a partition took place in that proceeding. He also admits that a dispute arose with respect to land which has been sold to one Moti Lal and Radheshyam. In the said dispute also he had to attend the court proceeding at Tehsil office. He also admits that in the said proceeding before the Tehsildar Bilaspur, he appointed appellant Tula Ram Patel as his counsel and he used to go to Bilaspur Tehsil office along with him. He admits that he made a police complaint against Moti Lal and Radheshyam and raised objection also in their bail application. He admits that he was surety of various persons of the village in criminal case. He admits in para 17 of his cross examination that on the date of incident firstly he went to the house of Tula Ram, eat chicken there and thereafter came to Bilaspur along with him. He reached at Registry office Bilaspur along with Tula Ram at 12-1 in the noon. He did not know as to whether on the date of incident his photograph was snapped in the Registry office or not. He also did not know as to whether he puts his signature or thumb impression before the officers of Registry office or not. He admits that on the date of incident Tula Ram was with him but he did not know as to whether he was an accused in any offence or not. He denied that when the officers of Registry office asked about the consideration amount, he said that he has received the entire sale consideration. In further cross examination he admits that the officers of registry office did not ask him about any surety. He could not remember as to whether his thumb impression was taken or not. He admits that Seepat Police has taken his signature on 30-40 places. He denied that appellant Tula Ram has made an application before the 13 Naib Tehsildar Bilaspur for mutation of land in which he received notice. He admits that the subject land is presently recorded in the name of appellant Tula Ram in the revenue records. Against the mutation order any proceeding was being drawn or not, he did not know but his son Budheshwar would know about the same. He did not know as to whether his son Budheshwar has filed any Civil Suit with respect to subject land or not, but he himself has not filed any Civil Suit to get the sale deed declared null and void. He admits that before selling of his land to Moti Lal, he sold the land of his elder son Dileshwar to one Chhameshwar Patel, Bhondu and Mohit Ram and its consideration was given to Dileshwar. The land which was sold to Bhuneshwar, its consideration was given to his younger son Budheshwar. Although, he resiled from some part of his police statement Ex.P/14 about the manner in which he was being taken to Registry office Bilaspur by the appellant Tula Ram Patel and got the sale deed registered. He also admits that he used to go to Bilaspur along with Tula Ram for treatment as also for other domestic work. His routine work was also being done by Tula Ram. He denied that after obtaining the entire sale consideration he got registered the sale deed in his favour after completing the due process of registration of sale deed. 20. From the evidence of this witness, it is quite apparent that the complainant Mehar Chand was under the influence of appellant Tula Ram as he used to help him in all his routine work. The complainant was having deep faith with him. On the date of incident the appellant Tula Ram took him as a surety, however, instead thereof he got sale 14 deed registered allegedly executed by the complainant Mehar Chand. He was with him for whole day and in the evening he left him to his house. He also provided food to him which clearly shows that complainant was having close confidence upon him and he came to the office of Registrar Bilaspur as his surety. In the cross examination of this witness it does not come as to when and in what manner the sale consideration was given to him. In the sale deed Ex.P/27 it is mentioned that entire sale consideration has already been paid to the seller and nothing remains to be paid at the time of registration of deed, but there is lack of any statement in his cross examination that he received sale consideration from the appellant Tula Ram Patel. 21. PW-4, Budheshwar, son of complainant, have stated in his evidence that on 23.03.2011 he came to know that his father Mehar Chand got ill and he advised his brother to get him treated by local doctor. On 25.04.2011 one Raju and Narayan of village Butapara made a telephonic call to him and asked as to whether they sold their land of village Khaira or not, then he replied in negative and thereafter inquired from his father i.e. complainant about any transaction of the said land to which the complainant replied that he has not sold the land. He also replied that on 23.03.2011 he went to Bilaspur as a surety of appellant Tula Ram. When this witness inspected the record of Registry office then he came to know that his entire 8.85 Acres of land got registered in the name of appellant Tula Ram Patel and the seller was his father Mehar Chand. He made a complaint to Seepat Police station but they refused to action on the ground of jurisdiction 15 and thereafter he made a complaint at Civil Lines Police Station, Bilaspur. In cross examination, he states that 2-3 years prior to the disputed transaction his father sold some portion of land to one Radheshyam for total consideration of Rs. 1,60,000/-. Some dispute arose between them and then his father Mehar Chand went in litigation before the Tehsil office in which the appellant Tula Ram was the counsel of his father. His father used to go to Bilaspur in the proceeding of litigation along with appellant Tula Ram. When Raju made a call on 25.04.2011 he immediately inquired about the transaction and then he came to know about the sale deed of 8.85 Acres in favour of appellant Tula Ram. Seepat police recorded the statement of his father, mother, appellant Tula Ram and Sita Ram but he did not know as to whether any closure proceeding was drawn by Seepat Police or not. He admits that he got obtained certified copy of said sale deed, but he has not made any complaint to Civil Lines Police Station for about two years. He voluntarily states that he has already made complaint to Seepat police Station in which inquiry was going on and in the meantime his elder brother Dileshwar and his mother died. He admits that a Civil Suit was also filed with respect subject land of 8.85 Acres along with his other family members against Tula Ram and Mehar Chand. The application for grant of temporary injunction was rejected in that civil suit. He also filed an application under Section 156(3) of CrPC against the appellant Tula Ram Patel, Sita Ram Kaiwarty and Devendra Tiwari. His father has 16 not filed any Civil Suit for cancellation of sale deed. He voluntarily states that they were acting as per the advise given by their counsel. 22. From examination of this witness also, it reflects that when he came to know about the said transaction, he inquired about the matter and made complaint to the police station Seepat as well as Civil Lines Bilaspur. When he asked from his father, he denied execution of any sale deed in favour of Tula Ram Patel. He was not cross examined about the consideration amount or his father have informed him about any consideration amount towards 8.85 Acres of land. 23. PW-1, Rajeev Kumar Swarnkar, is the Sub Registrar posted at Registry office Bilaspur. He states in his evidence that he is posted there from the month of May, 2013 and the police has seized relevant documents from him and the seizure memo is Ex.P/1. In cross examination, he admits that at the time of registration of sale deed, the seller is required to come with documents of Rin Pustika, B-1, Khasra Panchshala and 22 column form. He also cross examined about requirement of verification at the time of registration of deed. He admits that in copy of seized sale deed the computerized thumb impression part of the deed is not annexed. He also admits that at the time of registration of sale deed the signature and thumb impression of the seller is taken in the computerized system. If he denied his signature or thumb impression, the same can be enquired from his thumb impression or signature available in the computerized system. 24. PW-2, Chamru Ram Khaira, have stated in his evidence that at the time of alleged incident he met with complainant Mehar Chand. At that 17 time, the appellant Tula Ram Patel also came there. He asked from Mehar Chand then he informed that he is going to Bilaspur along with Tula Ram as a surety. In the evening when he came back along with Tula Ram, the complainant Mehar Chand was sitting in between Tula Ram and Sita Ram. Tula Ram was driving the motorcycle and Sita Ram was holding the complainant Mehar Chand. Mehar Chand vomited there. The appellant Tula Ram used to visit to the house of Mehar Chand regularly. Tula Ram was having suspicious activities as earlier also he attempted forgery with other villagers and got the land of Janu Pathak transferred in his name. In his entire cross examination it comes that on the date of incident he asked from the complainant Mehar Chand then he disclosed that he is going to court to take surety of Tula Ram. He also stated in his cross examination that Tula Ram has taken the paddy crop of complainant and when he objected, Tula Ram said that he has an order in his favour from the court. 25. PW-3, Gyan Chand Pathak, is the witness of memorandum Ex.P/2 & P/4 and seizure memos Ex.P/3 & P/5. He duly supported the case of prosecution and memorandum and seizure memos. Although he stated in his cross examination that on the complaint made by the appellant Tula Ram he was prosecuted for the offence under Section 307/34 IPC but the said incident of the offence of Section 307 IPC is the subsequent incident to the present one. The offence of Section 307 IPC was of the incident dated 27.04.2013. 26. PW-5, Raj Kumar Nayak, is the Nephew of complainant Mehar Chand who stated in his evidence that on 23.03.2011 at about 9 PM when he 18 came to his house, he saw the complainant who was in intoxicated condition and almost in unconscious condition and then he informed his brother Budheshwar and called doctor Krishna Kumar Kaiwarty who got treated him and informed that due to excessive drink he has lost his consciousness. After 3-4 days he came to know that appellant Tula Ram got registered his 8.85 Acres of land in his own name. This witness is related only to the fact that on the date of incident the complainant Mehar Chand got ill and when he was being treated by Dr. Krishna Kumar Kaiwarty, he informed that due to intoxicating condition he fell ill. It is the case of prosecution that on the date of incident the complainant was being taken by the appellant Tula Ram Patel and after administering some intoxicating drink he got registered the sale deed instead of surety for which he was taken to Bilaspur by the appellant Tula Ram. 27. PW-7, Shyam Kumar Dandwate, is the Clerk of Registry office Bilaspur who proved the seizure memo Ex.P/1. PW-8, Bhagwat Prasad Yadav is the witness of spot Panchnama Ex.P/6. 28. PW-10, Anil Kumar Kenwat, have stated in his evidence that appellant Tula Ram has taken the complainant Mehar Chand to Bilaspur and in the evening he left the complainant to his house at village Khaira. His house is situated just in front of the house of complainant. In the morning the complainant was of good health but in the evening he was suffering from fever and his condition was not good. In cross examination, he states that in the morning he saw that complainant 19 was going with the appellant Tula Ram. Except this, he has not supported the prosecution’s case. 29. PW-11, Girish Sharma, is another witness of memorandum Ex.P/2 and P/4 and seizure memo Ex.P/3,P/5 & P/8. He too have duly supported the prosecution case. 30. PW-12, Rajesh Jagat, is the Sub Inspector of Police, who registered the FIR, Ex.P/16 on the basis of written complaint Ex.P/7 made by the complainant Mehar Chand Patel. Though he was also detailed cross examined but his evidence is relevant only to the effect that a written complaint has been made by the complainant and he got registered the FIR Ex.P/16. He has not made any investigation in the matter. 31. PW-13, Suresh Kumar Dhruw is the Inspector of Police who is investigating officer and partly investigated the matter, have stated that on 13.10.2014 he recorded the memorandum statement of appellant Tula Ram Patel which is Ex.P/2 and Sita Ram Ex.P/4. On the basis of their memorandum statement, he made the seizures of documents vide Ex.P/3 & P/5 and he arrested both these accused persons on 13.10.2014. He filed the charge sheet in the case. In cross examination he states that on 23.03.2013 he was not posted at Civil Lines Police Station. He received the case diary after 18-19 months. Though certain dates have been wrongly mentioned in the documents and he explained that by mistake the dates have been wrongly mentioned. He admits that he has prepared the final report in which the inquiry conducted by Seepat Police was annexed. When he received documents from Seepat Police Station after inquiry he has not informed it to the Superintendent of Police and directly filed the 20 final report. Though certain discrepancies have been asked from this witness, but he being the procedural witness of investigation, those discrepancy does not affect the merits of the case particularly when he supported his part of investigation. 32. PW-14, R.K. Elma is a handwriting expert posted at Police Headquarter Raipur. He stated in his evidence that on 30.06.2014 he received a request letter for examination of the signature of the complainant which is Ex.P/26. The questioned signature was marked as Q1 to Q6, the specimen signature of complainant was marked as S1 to D6 and his natural signature was marked as N1 to N11. The specimen signature is Ex.P/29 and his natural signature is Ex.P/9 to P/13. With the help of the relevant machines he minutely examined the signatures and after examination he gave report Ex.P/30 & P/31 and opined that the person who made signature in S1 to S6 and N1 to N11 have not made the signatures over Q1 to Q6. In cross examination, he remain firm in the discrepancies of the signatures which he examined in S1 to S6 and N1 to N11 with that of Q1 to Q6. Though he admits there may be some discrepancies in the signatures in two places if a person is old aged, but he stated that if any person would try to disfigure his signature, he cannot disfigured it completely and some natural consequence would reflect in it. This court does not find any sufficient reason to disbelieve the evidence of this witness that he has not examined the signatures or his examination report suffers from any irregularity. 33. PW-15, S.K. Sharma, is the Police Sub Inspector who conducted the part of investigation and supported the prosecution case. He recorded 21 statements of witnesses, obtained specimen signature of complainant and send it for its examination to the office of State Examiner of Questioned Documents Raipur. Though he admits that by the lapse of time there may be some variance in signature of same person in two places, but in view of the evidence of PW-14, R.K. Elma, the handwriting expert, it cannot be said that his part of investigation suffers from any deficiency. 34. The appellant Tula Ram Patel examined himself as DW-1 under Section 315 CrPC and he filed the document Ex.D/7 which is an order passed by the Additional Tehsildar, Bilaspur, in Revenue Case No.19/A6/2010-11 by which an order has been passed in his favour for mutation of his name in the revenue records of the land of 8.85 Acres of complainant. The said order has been passed on 05.06.2012. He also filed a document of depositions made in the said revenue proceedings of mutation. Document Ex.D/11 was filed which is the order dated 16.12.2014 passed by the 4th Additional District Judge, Bilaspur in Civil Suit No.84-A/2014 whereby an application under Order 39 Rule 1 & 2 read with Section 151 CPC filed the plaintiffs was rejected. By examining himself and by filing the document Ex.D/1 to D/28, the appellant Tula Ram tried to establish that he genuinely purchased the land from the complainant Mehar Chand and after due process of law he got mutated the said land in his name and there is no forgery or cheating with the complainant. When the handwriting experts report finds that there was no signature of complainant over the alleged sale deed, there was no evidence with respect to payment 22 of sale consideration to the seller against the alleged sale deed, the purchaser Tula Ram Patel was an Advocate and representing the complainant in a Revenue proceeding it can safely be held that complainant was under influence of appellant Tula Ram Patel. Taking benefit of this trust, the appellant Tula Ram took him to Bilaspur as his surety in a criminal case and got registered the sale deed in his name fraudulently. During inquiry and investigation it is also found that a forged sale deed got registered by appellant Tula Ram with collusion of Patwari, Deposition Writer as well as the attesting witness. 35. DW-2, Akhilesh Pathak, was also examined by the appellants who states about payment of sale consideration that Tula Ram borrowed Rs.3 Lakhs from him to purchase land on 23.03.2011. He came to Registry office and gave the said amount to Tula Ram. In cross examination he states that he could not remember as to what was the denominations of that 3 Lakhs rupees. He furthe states that after giving it to Tula Ram in the Registry office he came back to his house. He did not know as to whether Tula Ram gave that amount to the seller i.e. complainant or not. 36. In the sale deed Ex.P/27 it was reflected that sale consideration was already paid mutually prior to registration of sale deed and on that day there was no outstanding towards sale consideration. On the date of registration of alleged sale deed when there was no outstanding amount, there was no reason to give Rs.3 Lakhs towards sale consideration and if it was actually given on the date of registration of alleged sale deed, it should have been mentioned in the said sale deed that Rs.3 Lakhs is to be given at the time registration of said sale 23 deed. Even there is no cross examination from the complainant that on the date of registration of sale deed Rs.3 Lakhs was given as outstanding sale consideration. In the entire case, the defence did not establish that he has paid the entire sale consideration to the complainant. 37. In the matter of Ram Narayan Popli Vs. Central Bureau of Investigation, 2003 (3) SCC 641, the Hon’ble Supreme Court has held in paragraph 366 to 377 as under: “366. Section 420 deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person deceived delivers to some one a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself. 367. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned. 368. Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent. 369. Section 471 deals with using as genuine a forged document. For the purpose of convicting an accused under Section 467 read with Section 471 IPC, it has to be shown that an accused either knew or has reason to believe that the document was forged. 370. Section 463 defines forgery and Section 464 deals with making a false statement. Section 463 reads as follows: "463. Forgery-[Whoever makes any false 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." 371. In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community. 24 372. The expression 'intent to defraud' implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term 'forgery' as used in the statute is used in its ordinary and popular acceptation. 373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false (ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty. 374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small. 375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed. 376. A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person. 377. The accused persons have tried to take shelter behind what they have described as "market practices". Such practices even if existing, cannot take the place of statutory and regulatory functions. There is no public interest involved in such practices and they cannot be a substitute for compliance with the regulatory or statutory prescriptions. An attempt was made to show that there was subsequent disapproval of the market practices; at the point of time when the transactions took place there was no embargo. It is their stand that the practices were a part of accepted norms. We do not find anything plausible in these explanations. A practice even if was prevailing, if wrong, is not to be approved. The subsequent clarifications do not in any way put seal the approval of the practices adopted on the past on the other hand it condemns it.” 38. Close scrutiny of evidence makes it clear that it is the appellant Tula Ram Patel who was the counsel of complainant Mehar Chand and having dominating position. The complainant used to visit with 25 appellant for various purposes. He helped him in routine domestic work. Tula Ram was well aware about family condition of complainant that his two sons were residing separately from him and by taking advantage of his situation, he took him to Bilaspur on the pretext that he will be made as a surety in a criminal case registered against him and instead of surety, the appellant Tula Ram got registered sale deed of his entire 8.85 Acres of land by impersonating and putting his forged signature over the sale deed. He claimed that complainant has executed sale deed genuinely and got his name mutated in the revenue records and obtained an order from the Additional Tehsildar in mutation proceeding, but ultimately in the report made by the complainant, the signatures were examined and it was found that signature in the sale deed was not of complainant Mehar Chand i.e. seller. Therefore, the involvement of appellant Tula Ram Patel is duly proved that he prepared forged sale deed, got it registered and claimed as genuine sale deed and cheated the complainant by the said act. 39. So far as the involvement of appellant Sita Ram is concerned, when it is found that the appellant Tula Ram got fraudulently executed the sale deed in his name allegedly sold by complainant Mehar Chand and when it is found that the signature of complainant Mehar Chand is not there in the alleged sale deed, yet the co-accused Sita Ram has attested the transaction as an attesting witness. He also is guilty for the alleged offence having common intention through forgery of the document and to cheat the complainant. When the forged signature of complainant was put in the alleged sale deed which has been 26 recognized by the attesting witness that it was the genuine transaction having witnessed by the witnesses, it cannot be said that his act was also bonafide. The appellant Sita Ram with the collusion of appellant Tula Ram Patel got executed the alleged sale deed in the name of Tula Ram Patel and thus he is also liable for alleged offence committed by him along with appellant Tula Ram Patel. 40. Section 3 of the Transfer of Property Act, 1882, defines the word "attested" which states as under:- ““attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 41. From perusal of the definition of the word "attested" would show that the essential conditions of a valid attestation as provided under Section 3 of the Transfer of Property Act, 1882, are- (i) Two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (ii) With a view to attesting or bearing witness to this fact, each of them has signed the instrument in the presence of the executant. 42. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. 43. It is not the question here that the nature of the deed is disputed, but the question is that the signature of the executant is disputed, that the 27 deed has not been signed by the executant, but he has been impersonated and got the forged sale deed registered in his name. Thus, in the present case, the role of attesting witness is very important to attest the signature of the executant or to attest the deed as provided under Section 3 of the Transfer of Property Act, 1882. When it is found that the executant has not signed the alleged sale deed, yet the attesting witness has attested that the executant has signed it, then it smells the collusion with the alleged purchaser, who is the beneficiary of the land. The attestation means executing, signing or affixing in the presence of 2 or more witnesses, each of whom has seen the executant signing and vice versa, and not necessarily more than one of them shall present, and a particular form of attestation is necessary. An attesting witness merely testifies that the executant signed that document in his presence. 44. The attestation of a person to a document is to ensure that there is no fraud or other vitiating circumstances in the execution of the document. The attestation is to ensure that the executant was a free agent and neither under pressure nor subject to fraud. The very object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. In the matter of Kumar Harish Chandra Singh Deo and Another v. Banshidhar Mohanty and Others, AIR 1965 SC 1738, the Hon'ble Supreme Court has held in para 4 of its judgment that - “4. In our opinion there is no substance in either of the contentions urged on behalf of the appellant. It is no doubt true that there were only two attesting witnesses to the mortgage deed, one of whom was Respondent 1, that is, the lender himself. Section 59 of the Transfer of Property Act, which, amongst other things, provides that a mortgage 28 deed shall be attested by at least two witnesses does not in terms debar the lender of money from attesting the deed. The word "attested" has been defined thus in Section 3 of the Transfer of Property Act: ""attested in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary". This definition is similar to that contained in the Indian Succession Act. It will be seen that it also does not preclude in terms the lender of money from attesting a mortgage deed under which the money was lent. No other provision of law has been brought to our notice which debars the lender of money from attesting the deed which evidences the transaction whereunder the money was lent. Learned counsel, however, referred us to some decisions of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra: Sarur Jigar Begum v. Barado Kanta and Gomathi Ammal v. V.S.M. Krishna lyer. In all these cases it has been held that a party to a document which is required by law to be attested is not competent to attest the document. In taking this view reliance has been placed upon the observations of Lord Selborne, LC, in Seal v. Claridge. "It (i.e. the attestation) implies the presence of some person, who stands by but is not a party to the transaction." The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt, neither the definition of "attested" nor Section 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. It would follow, therefore, that the ground on which the rule laid down in English cases and followed in India would not be available against a person who has lent money for securing the payment of which a mortgage deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by the Bombay High Court in Balu Ravii Gharat v. Gopal Gangadhar Dhabu and by the late Chief Court of Oudh in Durga Din v. Suraj Bakhsh. In the first of these cases an argument similar to the one advanced before us was addressed before the Bombay High Court. Repelling it the court observed: "In Seal v. Claridge much relied upon by the appellant's pleader the old case of Swire v. Bell, (1793) 5 TR 371, in which the obsolete rule was pushed to its farthest extent, was cited to the 29 Court but Lord Selborne in delivering judgment said: 'What is the meaning of attestation, apart from the Bills of Sale Act, 1878? The word implies the presence of some person who stands by but is not a party to the transaction'. He then referred to Freshfield v. Reed, (1842) 9 M. & W. 404 and said: 'It follows from that case that the party to an instrument cannot attest it'. Again in Wickham v. Marquis of Bath, (1865) LR 1 Eq. 17 at p. 25, the remarks of the Master of the Rolls imply that if the plaintiffs Dawe and Wickham had not executed the deed as parties but had only signed with the intention of attesting, the provision of the statute requiring two attesting witnesses would have been satisfied." A distinction was thus drawn in this case between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction and it was said that the latter was not incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with the view taken by the Bombay High Court.” 45. From the above consideration, the prosecution has proved the offence against Sita Ram also that he along with the appellant Tula Ram cheated the complainant by personation and prepared forged document and used a forged document as genuine and produced himself to be of attesting witness. Therefore, he has also been rightly convicted by the learned trial court. 46. So far as appellant Ashok Dhruw (CRA No.294 of 2016) is concerned, he is a Patwari, who issued 22 column form in favour of the complainant. From perusal of entire evidence available on record, it appears that there is no sufficient evidence as to who obtained the said 22 column form from the Patwari and to whom it was delivered. Issuance of 22 column form is one of his official duty and in absence of cogent and clinching evidence it cannot be said that he actively participated or having common intention to commit forgery or cheating with the complainant. There is lack of evidence against him to made 30 him liable for the alleged offence. Therefore, he is entitled for benefit of doubt. 47. So far as appellant Devnath Yadav (CRA No.318 of 2016) is concerned, he is a Document Writer who scribed sale deed. His role was only that he scribed the sale deed. Though, he was required to get the facts verified from the vendor as well as purchaser, but there is no sufficient evidence against him also that he also actively participated in the act of co-accused Tula Ram Patel. From the entire evidence there is lack of sufficient evidence against him that he violated any conditions of Rules, 1966. None of the witnesses have specifically alleged that he also involved in the offence. Further, no specific question has been asked from him in his 313 CrPC statement that in the sale deed the complainant has not put his signature, but someone has put his signature in his place. Therefore, in absence of any sufficient evidence the appellant Devnath Yadav is also entitled for benefit of doubt. 48. The trial court after considering the entire evidence available on record hold the appellant Tula Ram Patel and Sita Ram guilty for the alleged offence in which I do not find any illegality or perversity to upset the well reasoned findings recorded by the trial court and therefore their appeal (CRA No.287 of 2016) is dismissed. However, against the appellants Ashok Dhruw and Devnath Yadav, this court does not find any sufficient ground to uphold their conviction and sentence and by giving them benefit of doubt, their appeals (CRA Nos. 318 of 2016 and CRA No.294 of 2016) are allowed and they are acquitted from the 31 alleged offences by giving them benefit of doubt. Their conviction and sentences are hereby set aside. 49. The appellants Ashok Dhruw and Devnath Yadav are reported to be on bail. Their bail bond shall continue for a further period of six months as provided under Section 481 of BNSS. 50. The appellants Tula Ram Patel and Sita Ram Kaiwarth are also on bail. They shall be taken into custody to undergo their sentence as awarded by the learned trial court. 51. The records along with a copy of this judgment be sent back immediately to the trial court, concerned for compliance and necessary action. inder Sd/- (Ravindra Kumar Agrawal) Judge