Darshan Singh v. State of Haryana

CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Gurinder Pal Singh, Advocate for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by Darshan Singh son of Assa Singh. He was tried by the Court of Judicial Magistrate Ist Class, Kurukshetra, who found him guilty for an offence under Sections 420, 466, 468 and 471 IPC. Learned trial Court had sentenced the petitioner to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/-, for an offence under Section 471 IPC, and further for a period of one year and nine moths and to pay a fine of Rs.1,000/-, for commission of an offence punishable under Section 468 IPC. He was also sentenced to undergo rigorous imprisonment for a period of one year and six months for the commission of an offence under Section 466 Criminal Revision No. 411 of 2005 2 IPC. Further, the petitioner was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, for the commission of an offence under Section 420 IPC. In default of payment of fine, on all counts, he was ordered to further undergo simple imprisonment for a period of three months. All the sentences were ordered to run concurrently. Aggrieved against the judgment of conviction and order of sentence, the petitioner had preferred an appeal. The Appellate Court had dismissed the appeal by upholding the conviction and maintaining the sentence. Malook Singh filed an application under Section 340 Cr.P.C. in the Court of Sub Judge-cum-Judicial Magistrate Ist Class, Kaithal, with a prayer that an enquiry be held under Section 340 Cr.P.C. and prosecution be launched against the petitioner for the offence specified under Section 195(1)(b) Cr.P.C. In the application, it was submitted that a civil suit bearing No. 668 of 1980 titled as “Sher Singh v. Malook Singh” was instituted, relating to the land owned and possessed by Malook Singh. He had stated that no summons were served upon Malook Singh, defendant to the suit. Malook Singh was impersonated as some other person appeared in his place and submitted power of attorney, written statement having thumb impressions. On the basis of impersonation, forged power of attorney and written statement submitted, the civil suit was decreed in favour of Sher Singh, minor son of the petitioner. Malook Singh had challenged the decree by filing a Civil Suit No. 109 of 1985. The Court held that the decree passed in the Civil Suit No. 668 of 1980, on 28.7.1980 was void, ineffective and not Criminal Revision No. 411 of 2005 3 binding on Malook Singh, applicant. Malook Singh appeared and made his statement before the Court for holding an enquiry under Section 340 Cr.P.C. The Court of Judicial Magistrate Ist Class, Pehowa, on 6.8.1998 concluded the enquiry and held as under:- “3. In the enquiry conducted by this Court, Malook Singh complainant has appeared as CW.1 and judgment and decree dated 29.10.86, setting aside the forged decree dated 28.7.80 in civil suit no. 668 of 1980 has been relied upon being Ex.PB and Ex.PC, respectively. A perusal of the evidence adduced on behalf of the complainant Malook Singh, who has brought the evidence referred to in Section 195(1)(b) Cr.P.C., to the attention of the Court shows that, the accused Darshan Singh has actually committed the offence and thus this conclusion is drawn as a record of finding to the effect. Accused Darshan Singh, already is on bail. And is directed to appear before the Court of the Chief Judicial Magistrate, Kurukshetra, on 10.9.98 at 10. a.m. sharp and the accused has to do so. As per the provisions of Section 340 Cr.P.C. since the Court in which the application under section 340 Cr.P.C. has been initiated and is the court in which accused Darshan Singh had committed the offence, is only to forward the complaint, the Criminal Ahlmad attached to this court is directed to send the case file Criminal Revision No. 411 of 2005 4 alongwith the complete record to the court of learned C.J.M. at Kurukshetra so as to be presented before the learned C.J.M. Kurukshetra at 10 a.m. The 10th September, 1998”. It seems that no separate complaint was filed. An order dated

6.8.1998 passed by the Judicial Magistrate Ist Class, Pehowa, was treated as complaint. The Court of Additional Chief Judicial Magistrate, Kurukshetra, had formulated charges against the petitioner for an offence under Sections 420, 466, 468 and 466 read with Section 471 IPC. The charge stated that Darshan Singh cheated the complainant Malook Singh by dishonestly obtaining a decree by fraud and impersonation relating to the land belonging to Malook Singh by producing an impostor. The petitioner had denied the allegations and claimed trial. The Prosecution, on 7.3.2003, had examined Dr. Atul K. Singla, Handwriting and Finder Prints Expert, Patiala, as PW.1. On the same day, statement of Public Prosecutor was recorded that Malook Singh had died and his death certificate, Mark A, was placed on record. Thereafter, the statement of accused/petitioner was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances. In the present case, no evidence was led before the trial Court. PW.1 Dr. Atul K. Singla, Handwriting and Finger Prints Expert, Patiala, had only given his opinion regarding the handwriting and had testified that the thumb impressions on written statement and vakalatnama were not of Malook Singh. Except this, there is no evidence Criminal Revision No. 411 of 2005 5 on the record. The statement of Malook Singh, recorded in the enquiry held under Section 340 Cr.P.C., is not a substantive piece of evidence. At the most it is a previous statement. Therefore, there was no evidence before the Court to convict the petitioner. The statement of Malook Singh, recorded during the enquiry, has no value as at the most it could be treated as a previous statement under Section 161 Cr.P.C. It is only being used to confront the witness. There is no evidence before the Court to convict the accused, except the opinion of the Handwriting Expert. Thus, it is a case of no evidence. Hence, the present revision petition is accepted. The conviction and sentence awarded to the petitioner by both the Courts below is set aside. The petitioner is acquitted of the charges. March 4, 2010 “DK” (Kanwaljit Singh Ahluwalia) Judge