Sugan Chand vs Kheta Nath And Ors 419/468

इसमे प्रतिपादित किया है कि - एक षिकायत दाखिल करने पर कोई संज्ञेयता ग्रहण नहीं की गई क्योंकि जमीन हस्तांतरण करने के 20 वर्ष बीत चुके थे भले ही विक्रेता ने मिथ्या प्रमाण पत्र दाखिल किया था।

 (1) State Of Orissa vs Rabindranath Sahu on 28 January, 2002 Equivalent citations: 2002 CriLJ 2327, 2002 I OLR 309 = 

(2) Sugan Chand vs Kheta Nath And Ors. on 2 February, 1998 Equivalent citations: 1998 CriLJ 2668
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(1) Orissa High Court

State Of Orissa vs Rabindranath Sahu on 28 January, 2002

Equivalent citations: 2002 CriLJ 2327, 2002 I OLR 309

Author: P Patra

Bench: P Patra

JUDGMENT P.K. Patra, J.

1. This appeal against acquittal preferred by the State under Section 378 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (hereinafter referred to as the 'CrPC') is directed against the judgment dated 26.8.1989 in Criminal Appeal No. 87 of 1988 passed by Shri D. Rama Rao, Second Addl. Sessions Judge, Cuttack acquitting the respondent (hereinafter referred to as 'the accused') of the charge under Sections 419 and 468 of the Indian Penal Code (for short 'IPC') reversing the judgment dated 28.6.1988 passed by Shri H. B. Das, Chief Judicial Magistrate, Cuttack in Vigilance G. R. Case No. 37 of 1982 convicting the accused of the said charge and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000.00 in default to undergo rigorous imprisonment for a further period of three months under the first count and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000.00, in default to undergo rigorous imprisonment for a further period of four months under the second count and directing the substantive sentences to run consecutively. The accused was acquitted of the charge under Section 420 IPC.

2. The facts leading to this appeal, briefly stated, are as follows :

Pursuant to advertisements dated 16.4.1974 and 13.7.1974 published in two Oriya daily newspapers inviting applications from the Scheduled Castes and Scheduled Tribes candidates for three posts of Junior Motor Vehicle Inspector reserved for the S.C. and S.T, candidates under the Transport Department, the accused submitted his application on 16.7.1974 (Ext. 6) along with a true copy of his caste certificate purported to have been granted by the Tahsildar, Angul dated 10.3.1973 showing that he belonged to 'Kharwar' caste which was in the list of Scheduled Tribes as contained in the Scheduled Castes and Scheduled Tribes Order, 1956 subsequently amended by Act 108 of 1976, so as to make himself eligible to appear at the test for one of the said posts. It is alleged that the accused in fact belonged to 'Khadura' caste which was not in the list of the aforesaid order and as such he filed a forged caste certificate with a view to make himself eligible for the post. It is the further case of the appellant that the accused appeared in the interview conducted for the said posts and was selected as a Junior Motor Vehicle Inspector reserved for S.C. and S.T. candidates and secured first position among the three candidates selected by the Selection Board consisting of the Commissioner of Transport-cum-Chairman, S.T.A.; the Secretary to Government of Orissa, Transport Department assisted by the Deputy Commissioner (Enforcement) and the Chief Motor Vehicle Inspector. The accused was posted in the office of the Regional Transport Officer, Sundargarh and he joined there on 15.10.1974. Thus the accused secured the appointment by producing a forged caste certificate, and thereby cheated the Government.

3. Receiving reliable information about the said forgery, one Inspector of Vigilance, attached to the Vigilance Cell at Cuttack (P.W. 18) conducted a confidential enquiry and submitted a report to the Superintendent of Police (Vigilance), Central Division, Cuttack on 22.11.1982, The S.P., Vigilance registered a case and directed P. W, 18 to take up investigation. During investigation P. W. 18 served notice on the accused to produce the original caste certificate dated 10.3.1973, an attested true copy of which had been attached to his application for the post, but the accused failed to produce the same. After completion of investigation, P. W. 18 submitted chargesheet under Sections 420/419/468, IPC and the accused stood his trial.

4. The accused pleaded not guilty to the charge and asserted that he had secured the job as a Scheduled Tribe candidate since he belonged to 'Kharwar' community, and that he never forged the caste certificate to secure the job.

5. Prosecution examined nineteen witnesses in all including the I.O. in support of its case and the defence examined four witnesses in support of its plea of denial. After appreciating the materials on record, the trial court convicted the accused as stated earlier against which the accused preferred an appeal and the appellate court reversed the judgment of conviction. Hence, the present appeal was preferred against the appellate judgment of acquittal.

6. Learned Addl. Standing Counsel for the appellant and Shri G. Mukherjee on behalf of Shri P. K. Patnaik, learned counsel for the accused, were heard at length. Learned Addl. Standing Counsel strenuously urged for setting aside the judgment of the appellate court for incorrect appreciation of the materials on record and supported the judgment of the trial Court. Shri Mukherjee supported the judgment of the appellate court and contended that the findings of the appellate court and acquittal of the accused are based on proper appreciation of evidence on record and cannot be interfered with.

7. There is no dispute that the accused submitted his application dated 16.7.1974 (Ext. 6) to the Transport Commissioner-cum-Chairman, S.T.A., Orissa in response to the advertisements dated 16.4.1974 and 13.7.1974 for three posts of Junior M.V.I, reserved for S.C. and S.T. candidates. The said application was in the handwriting of the accused himself. In Col. 8 of the application the accused mentioned that he belonged to Scheduled Tribe being 'Kharwar' by caste. His educational qualification was B.Sc. Engg. (Mechanical) and his date of birth was 10.10.1947, vide Ext. 6. He had attached a true copy of his caste certificate purported to have been issued by one Natabar Kar, Tahsildar, Angul on 10.3.1973, attested by the Regional Transport Officer, Dhenkanal on 25.4.1974 showing that he belonged to 'Kharwar' caste which was recognised as a Scheduled Tribe under the S.C. and S.T. order of 1956. There is also no dispute that as per the S.C. and ST. Orders, 1956 amended in 1976, 'Kharwar' caste is included in the list of Scheduled Tribes at SI. 30 (Part XII to the First Schedule); whereas 'Khadura' caste is not included in the said list. Therefore, the accused allegedly furnished a false certificate showing him to be belonging to 'Kharwar' caste which was in the list of Scheduled Tribes, though in fact he belonged to 'Khadura' caste which was not included in the list and he was selected for the post of a Junior M.V.I, on the basis of that forged caste certificate. At the lime of his joining the post, the accused did not furnish his original caste certificate before the authorities, though he was supposed to produce the same. Even during enquiry before registration of the case, the I.O. sent a letter dated 27.8.1982 to the accused for production of the original caste certificate dated 10.3.1973 for the purpose of verification, but the accused replied vide his letter dated 2.9.1982 (Ext. 37) that the original caste certificate had been misplaced and was not available with him. P.W. 10, Natabar Kar, who was the Tahsildar, Angul has denied to have granted any caste certificate on 10.3.1973 in favour of the accused since he was not the Tahsildar of Angul on that date and that he served as Tahsildar of Angul during the period from 1967 to 1969. Ext. 36 is the reply of the Tahsildar, Angul stating that Natabar Kar (P.W. 10) was serving as Tahsildar, Angul from 2.4.1967 to 4.1.1969. Hence the question of granting caste certificate in favour of the accused on 10.3.1973 did notarise. P.W. 19, D. Kanungo, who was serving as R.T.O., Dhenkanal and who allegedly attested the true copy of the caste certificate dated 10.3.1973 (marked 'Z' for identification) on 25.4.1974 has denied to have attested the same and has also stated that the signature (Ext. 39) purported to have been put by the R.T.O., Dhenkanal was not his. During the course of trial which prolonged for a period of about three years, the accused did not produce the original caste certificate. In the above background it is to be considered whether the accused' committed forgery for the purpose of cheating and securing a job of Junior M.V.I.

8. Ext. 1 is an unregistered sale deed dated 8.11.1952 executed by Balakrishna Sahu, grandfather of the accused in favour of Gopinath Biswal of village Aunli alienating a small portion of his land for a consideration of Rs. 36.00, describing him to be 'Khadura' by caste, Ext. 10 is the Admission Register of Koshala U.P. School maintained for the period from 1.4.1948 to 2.4.1953. Entry at SI. 120 (Ext. 10/1) relates to the accused whose father's name has been recorded as Madhusudan Sahu who got him admitted in 'Sishu' class on 2.4.1951. The date of birth of the pupil was recorded as 1.10.1945. His caste has been recorded as 'Khadara'. Ext. 11 is the letter dated 5,9.1980 of the then Subdivisional Officer, Angul Shri B. B. Patnaik (P.W. 7) addressed to the Deputy Commissioner of Transport, Orissa stating that he conducted enquiry regarding the caste of the accused. The letter reveals that the forefathers of the accused were residents of village Aunli of Bamada in Deogarh subdivision and Madhusudan Sahu, father of the accused, migrated to village Koshala and was residing there for about forty years. He married the daughter of one Balunki Das of that village and their traditional occupation was to prepare metal bangles and they were 'Khadura' by caste. In the R.O.R. bearing No. 629 (Ext. 16), the tenant's name has been noted as 'Madhu Sahu, S/o Gopi Sahu of village Koshala' and his caste has been recorded as 'Khadura'.

9. Coupled with the above documentary evidence, prosecution has placed reliance on the oral testimony of the following witnesses to establish its case against the accused.

P.W. 1 is a resident of village Aunli belonging to 'Khadura' Caste, who has stated that the accused belonged to 'Khodola' caste. In his statement in cross-examination he stated that 'Khodola' meant 'Kharwar' caste. Thus he has not supported the prosecution case against the accused though he has stated that the father of the accused was serving as a field servant in the house of one Balunki Das of the village Koshala and had eloped the daughter of his master.

P.Ws. 2 and 3 are also residents of village Aunli who have not supported the prosecution case.

P.Ws. 4 and 5 are two employees of the Transport Department who have stated regarding receipt and issue of letters concerning the appointment of the accused as a Junior M.V.I, and regarding the enquiry conducted after detection of the fraud committed by the accused.

P.W. 6 was a Teacher of Koshala U.P. School from 1946 to 1961 who admitted the accused in the school in 'Sishu' class as per the entry at Sl. 110 (Ext. 10/1) in the School Admission Register, Ext. 10. He has stated that he noted the caste of the accused as 'Khadura' on the date of his admission on 2.4.1951, but in his statement in cross-examination he stated that the father of the accused had married the daughter of one Balunki Das who was 'Khadura' by caste and that at the time of admission of the accused in the school his grandmother (mother's mother) had accompanied him to the school and according to her version the caste of the accused was noted as 'Khadura' and that the Head Pandit of the School sent for the father of the accused who put his LTI in the Admission Register which was attested by the Head Pandit, who on the request of the father of the accused, assured to correct the caste of the accused mentioned in the Admission Register, but the same was never done till the transfer of P.W. 6 from the school. The later part of the statement of P.W. 6 cannot be believed to be true, in as much as though he made the entry (Ext. 10/1) in the Admission Register (Ext. 10), he did not correct the caste of the accused from 'Khadura' to 'Kharwar' in spite of request of the father of the accused, though allegedly promised by the Head Pandit to do so. In the year 1951 when the accused was admitted in 'Sishu' class, the father of the accused as well as the Teachers of the school could not have perceived the consequences of recording the caste of a student. Therefore, the question of wrong recording the caste of the accused in the School Admission Register in the year 1951 does not arise. The entry (Ext. 10/1) cannot be thrown out of consideration, though the statement of P. W. 6 is prevaricating. The principle of 'falsus in uno falsus in omnibus' does not apply to criminal trials and it is the duty of the Court to separate the grain from the chaffs instead of rejecting the prosecution case on general grounds, as has been held in the case reported in AIR 1980 SC 957 (Bhe Ram v. State of Haryana). This principle is not to be invoked blindly as held in the case reported in AIR 1974 SC 21 (Bhagwan Tana Patil v. The State of Maharashtra). Falsity of testimony in one material particular would not ruin it from beginning to end. Accordingly, the veracity of the statement of P.W. 6 is to be considered. Reliance is to be placed on the entry - Ext. 10/1 in the School Admission Register which is more than thirty years' old, keeping in view the principle that witnesses may lie, but documents will not lie.

10. As against the above evidence led by prosecution in support of its case that the accused submitted the true copy of a false caste certificate to enable him to secure a post of Junior M.V.I., the defence has relied on the following evidence to show that the accused was 'Kharwar' by caste and not 'Khadura' by caste.

11. Ext. B is the certified copy of an R.O.R. bearing No. 910/ 231 showing the name of the tenant as Madhu Sahu, S/o Gopinath Sahu of village Koshala, 'Kharwar' by caste. Ext. B/1 is the certified copy of an R.O.R. bearing No. 910/230 showing the name of the tenant as Rabindranath Sahu, S/o Madhusudan Sahu of village Koshala and his caste has been shown as 'Kharwar'. But strangely enough while Ext. B has been prepared by Tahsildar of Chhendipada, Ext. B/1 has been prepared by the Tahsildar of Angul and the certified copies of both the R.O.Rs. Exts. B. and B/1, have been prepared, compared and certified by the same set of persons who were employees of the office of the Tahsildar, Chhendipada within 3.12.1984 to 5.12.1984. In Col. 6 of both the R.O.Rs. it has been mentioned that rents had been assessed from 1974-75 onwards and the lands recorded were not to be alienated in any way for the next five years. These two certified copies have been obtained after registration of this case on 23.11.1982. Though the R.O.R. bearing No. 625 has been prepared by the Assistant Settlement Officer and true copy of it has been granted by the Tahsildar, Chhendipada as per Ext. 16, the other two R.O.Rs. bearing Nos. 910/ 231 and 910/230 of the self-same village, certified copies of which have been marked as Exts. B and B/1, were produced in Court during trial which reveal that the former has been prepared by the Tahsildar of Chhendipada and the latter has been prepared by the Tahsildar, Angul. In the true copy of the R.O.R. produced by the prosecution, the caste of the tenant has been shown as 'Khadura'; whereas in the certified copies of the R.O.Rs. produced by the defence the caste of the tenant has been shown as 'Kharwar'. Ext. C is a list of students belonging to Scheduled Castes and Scheduled Tribes of Koshala M. E. School who were entitled to stipend and lump grant for the year 1958-59 in which at SI. No. 1 the name of the accused finds place showing him to be 'Kharwar' by caste when he was reading in Class VII. The defence has also produced the true copy of a Caste certificate (Ext. E) purported to have been granted by one Natabar Kar, Tahsildar of Angul on 10.3.1968 showing that the accused belonged to 'Kharwar' caste which was recognised as a scheduled tribe under the S.C. and ST. Orders. The same has been purportedly attested by the Addl. Commercial Tax Officer, Jamsela Combined Check gate, Mayurbhanj on 7.4.1977. But as stated earlier, Natabar Kar (P.W. 10) has denied to have granted such caste certificate in favour of the accused on 10.3.1973 (marked 'Z' for identification), but the defence did not confront the true copy of the certificate dated 10.3.1968 (Ext. E) to P.W. 10. As per Ext. 36, P.W. 10 served as Tahsildar of Angul from 2.4.1967 to 4.1.1969. Had he really granted the caste certificate either on 10.3.1973 or on 10.3.1968 in favour of the accused, the original of the same could have been produced in Court and confronted to this witness.

12. D.W. 1 was the Headmaster of Koshala M. E. School from 1949 to 1969 who has stated that the accused was 'Kharwar' by caste and had got stipend as a member of scheduled tribe for the year 1958-59 as per the list, Ext. C, which was forwarded to the District Welfare Officer by him as per the letter Ext. C/1. Ext. D relates to the entry in the Acquittance Roll regarding stipend received by the accused. But in his statement in cross-examination, D.W. 1 has stated that the caste of the students is not mentioned in the Admission Register, which is palpably incorrect in view of the specific column prescribed in the School Admission Register (Ext. 10) to mentioned the caste of the Students. D.W. 1 has since retired from service and has not produced the Admission Register of the M. E. School though he has stated that the accused had taken admission in his school in the year 1955. He also has stated that the list-Ext. C had been prepared by one Balakrushna Pradhan, a teacher of the school, and he had signed the same on 14.7.1958, but the seal of the school had not been put on it though on the forwarding letter (Ext. C/1) the seal of the Headmaster, M. E. School, Koshala had been put.

13. D.W. 2 who was the Additional C.T.O. at the Jamsela Combined Checkgate has stated to have attested a true copy of the caste certificate of the accused on 7.4.1977, but he could not say who was the Tahsildar of Angul on 10.3.1968 when the caste certificate was purportedly issued. It was suggested to this witness that since the accused was under his administrative control at Jamsela Checkgate, he put his signature with the remarks 'attested' on the true copy of the caste certificate purported to have been granted on 10.3.1968 by the Tahsildar, Angul. Though D.W. 2 denied the suggestion, non-production of the original certificate dated 10.3.1968 would lean iowards an adverse view against the accused. D.W. 2 has also stated to have attested the true copy of the High School Certificate (Ext. F) of the accused issued on 10.12.1963 on the same date along with Ext. E. The two copies of the certificates attested on 7.4.1977 were definitely not utilised for securing the job, but were prepared for some other purpose.

14. D.W. 3 was working as a Diarist in the office of the Transport Commissioner. He has stated regarding receipt of a letter sent by the S.D.O., Angul on 30.1.1981 which finds place in the Receipt Register (Ext. G). As discussed earlier, receipt of the said letter will be of no relevance for the purpose of this case.

15. D.W. 4, who was the S.D.O. of Angul during 1980-81, has stated that on 27.11.1980 he went to village Koshala to conduct enquiry regarding the caste of the accused pursuant to a letter dated 23.8,1980 of the Deputy Commissioner of Transport and he examined some witnesses and ascertained that the accused belonged to 'Kharwar' caste. Accordingly, he issued a caste certificate in favour of the accused in Misc. Case No. 358 of 1980 on 2.12.1980 (Ext. H). Ext. J is the enquiry report dated 2.12.1980 which was sent to the Deputy Commissioner of Transport on the same date.

He also sent a further report, vide Ext. K, in response to the letter of the Deputy Commissioner, Transport. In his statement in cross-examination, D.W. 4 has stated that he had referred to the enquiry report dated 9.9.1980 sent by his predecessor-in-office (P.W. 7). He did not explain as to why he had to conduct a further enquiry in the matter and grant a caste certificate in favour of the accused when he was aware of the enquiry report of his predecessor that the accused was not a member of scheduled tribe, but was 'Khadura' by caste. Therefore, the statement of D.W. 4 will not be any help to the defence in this case.

16. Receipt of scholarship/stipend by the accused as a member of Scheduled Tribe cannot lead to the conclusion that he was 'Kharwar' by caste. The availability of the forwarding letter (Ext. C/1) along with the statement (Ext. C) in the office of the Headmaster of the School raises grave doubt since Ext. C/1 being the original letter addressed to the District Welfare Officer, in normal course should have been available in the office of the D.W.O. That apart, Ext. C does not bear the seal of the Headmaster of the School which is available on Ext. C/1 containing the names of thirtyone students recommended for award of stipend, which is not in consonance with the Acquittance Roll (Ext. D) maintained by the School wherein, vide Ext. D/1 the names of eleven students belonging to Scheduled Tribes and eighteen students belonging to Scheduled Castes have been mentioned. There is no mention of one name of 'O.B.C.' student, which finds place in Ext. C. This leads to the conclusion that Exts. C and C/1 have been subsequently prepared for the purpose of this case. Had these documents been produced by the District Welfare Officer, the consideration might have been otherwise. Therefore, Exts. C and C/1 having been produced from the custody of the Headmaster of the M.E. School, the same cannot be relied upon.

17. This is an unfortunate case in which the appointing authorities placing reliance on the false caste certificate furnished by the accused appointed him to the post of Junior M.V.I, without requiring him to furnish the original caste certificate before he joined the service. Had he been asked to furnish the original caste certificate along with the certificate regarding his health from the medical officer, two character certificates and other documents as mentioned in the appointment order (Ext. 9), the accused could not have joined the service. Subsequently also nobody bothered to ask for the original caste certificate of the accused to be kept on record, as a result of which the accused continued in service for about eight years and drew salary.

18. As discussed earlier, had the accused procured the caste certificate granted by the Tahsildar, Angul on 10.3.1973, showing him to be 'Kharwar' by caste, he would not have hesitated to produce the original caste certificate at the time of his interview or at the time of his joining the service, or subsequent thereto, or when he was required to produce the same before the investigating officer, or during the trial in Court. He having failed to do so, and P.W. 10 having denied to have granted any caste certificate in favour of the accused, and P.W. 19 having specifically denied to have attested the true copy of the caste certificate dated 10.3.1973, the inevitable conclusion will be that the accused had falsified the document relating to his caste and had secured the appointment as Junior M.V.I, by cheating the authorities. As discussed earlier, the oral and documentary evidence adduced in support of the prosecution case does not suffer from infirmities and incongruities and are found to be trustworthy and reliable. Therefore, the inevitable conclusion would be that the prosecution has been able to establish its case by leading cogent, convincing, consistent and unimpeachable evidence that the accused belonged to 'Khadura' caste and not 'Kharwar' caste and by producing a false caste certificate he secured the job of Junior M.V.I., reserved for S.C. and S.T. candidates, and thereby committed offences underSections 419 and 468, IPC.

19. The documentary and oral evidence in support of the defence plea cannot be given any credence for the reasons discussed earlier, and the defence plea that the original caste certificate issued in favour of the accused was misplaced cannot be believed to be true. Had the caste certificate been lost or misplaced, the accused after joining the service as a Junior M.V.I, under Government of Orissa would have been wise enough to procure a duplicate caste certificate from the authority who granted the same and could have produced the same for verification, even at the stage of trial. The belated attempt to procure a caste certificate (Ext. H) from D.W. 4 in Misc. Case No. 358 of 1980, which was on the application of the accused, has become futile in view of the earlier report of P.W. 7, vide Ext. 11, and hence no weightage can be given to Ext. H. As per the defence case, the accused was in possession of a caste certificate dated 10.3.1968 (Ext. E) granted by the Tahsildar, Angul, Shri Natabar Kar (P.W. 10). Had he really possessed the same at the time of his submission of application for the post of Junior M.V.I., there was no necessity of obtaining another caste certificate dated 10.3.1973, or the subsequent caste certificate (Ext. H) dated 2.12.1980 granted by the S.D.O. (D.W. 4), who in fact was not the proper authority to grant caste certificate. A Tahsildar is the proper authority to grant caste certificate in favour of a person after due enquiry by the Revenue Inspector. Thus, Exts. E and H are of no avail to the defence.

20. The learned Second Addl. Sessions Judge has failed to appreciate the evidence on record in its proper perspective and has passed the cryptic judgment setting aside the findings of the trial Court, who in a well discussed judgment has correctly appreciated the evidence on record. In para 10 of the appellate judgment, the learned Second Addl. Sevens Judge has criticised the finding of the trial Court regarding rejection of the enquiry report (Ext. J) submitted by D.W. 4. In view of the discussions made earlier, the view expressed by the learned Second Addi. Sessions Judge regarding the high calibre, integrity and impartiality of D.W. 4 was uncalled for and cannot be sustained. The trial Court correctly appreciated the evidence on record and rightly rejected the enquiry report (Ext. J) submitted by D.W. 4 which cannot be interfered with. The views expressed by the learned Second Addl. Sessions Judge regarding D.W. 4 are misconceived and without any basis and are glaring revealation of incorrect appreciation of facts by him which cannot be sustained. Accordingly, the observation made by the Second Addl. Sessions Judge in Para-10 of his judgment is required to be expunged and is done so.

21. The facts and circumstances of the case reported in AIR 1965 SC 333 (K. Krishnamurty v. State of Andhra Pradesh) are similar to the facts and circumstances of the present case. In that case, Government appointed the appellant (accused) to a post in its Medical Services on being induced by deception that he was fully qualified for the appointment. In consequence of the appointment, Government had to pay him salary which fell due. Observing that the appellant had, deceiving Government dishonestly induced to deliver property to him, it was held that the appellant (accused) committed the offence of cheating under Section 415, IPC and since he had impersonated another person to secure the job, his conviction under Section 419, IPC was maintained. In the case at hand, the accused produced a false caste certificate and secured the job of a Junior M.V.I, and served as such for a period of about eight years till detection of the fraud and thereby deceived Government and dishonestly induced to disburse him salary and thus committed the offence of cheating under Section 415, IPC, punishable under Section 419, IPC. Not only that, the accused produced a false caste certificate to secure the job and thereby committed the offence punishable under Section 468, IPC. The trial Court correctly appreciated the evidence on record and having come to the right conclusion, convicted the accused underSections 419 and 468, IPC and sentenced him to various terms of imprisonment and fine. Therefore, the judgment dated 26.8.1989 passed by the Second Addl. Sessions Judge, Cuttack in Criminal Appeal No. 87 of'1988 setting aside the conviction and sentence of the accused underSections 419 and 468, IPC cannot be legally sustained and is bound to be set aside and the judgment of the trial Court, i.e. the judgment dated 28.6.1988 passed by the Chief Judicial Magistrate, Cuttack in Vigilance G. R. Case No. 37 of 1982 convicting the accused under Sections 419 and 468, IPC and sentencing him to undergo R.I. for six months and to pay a fine of Rs. 1000/- in default to under further R.I. for three months under the first count, and to undergo R.I. for one year and to pay a fine of Rs. 2000/- in default to undergo further R. I. for four months under the second count, and directing the substantive sentences to run consecutively is to be restored and confirmed.

22. Regarding the sentence passed against the accused, it can be said that it is on the side of leniency and warrants no interference. It is well settled that whoever pollutes justice by deliberately mutilating truth for his own interest, deserves no leniency. Notwithstanding the protracted trial of the case and disposal of the appeal, it will not be expedient to show leniency to the accused in a case of this nature. Since no notice of enhancement of sentence has been issued to the accused, the sentence imposed cannot be enhanced. Accordingly, the same is maintained.

23. In the result, Government Appeal No. 17 of 1990 is allowed. The judgment of the Second Addl. Sessions Judge, Cuttack dated 26.8.1989 passed in Criminal Appeal No. 87 of 1988 is set aside and the judgment dated 28.6.1988 passed by the Chief Judicial Magistrate, Cuttack in Vigilance G. R. Case No. 37 of 1982 convicting the accused under Sections 419 and 468, IPC and sentencing him to various terms of imprisonment and fine as stated above is restored and confirmed. The respondent (accused) is directed to surrender to bail and serve out the sentence.

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(2) Rajasthan High Court

Sugan Chand vs Kheta Nath And Ors. on 2 February, 1998

Equivalent citations: 1998 CriLJ 2668

Author: A Godara

Bench: A Godara

ORDER A.S. Godara, J.

1. Heard the learned Counsel for the petitioner for final disposal of this petition at the admission stage itself.

2. This petition by the complainant-petitioner has been preferred being aggrieved by the impugned order dated 4-9-97 passed by the learned Add). Chief Judicial Magistrate, Ratangarh in Cr. Misc. Case No. 14/97 while dismissing the petitioner's protest petition and accepting the Final Report No. 70 dated 30-10-96 filed by the Police Station, Sujangarh.

3. Briefly stated the facts giving rise to this petition are that the complainant-petitioner as well as the accused non-petitioner Nos. 1 and 2 are residents of Sujangarh Distl. Churu. the petitioner lodged a written report before the Collector, Churu alleging therein that the land bearing Khasra No. 431 measuring 23.13 bighas falling to the share of Nathu Ram is situated in Gopalpura and half of this agricultural land falling to the share of Nathu Ram, who is Kalbeliya and as such a member of Scheduled Caste, sold land measuring 11.13 bighas to Smt. Phooli Devi widow of Rughnath Jogi and that Smt. Phooli Devi has been described as Kalbeliya (Jogi) in the sale deed so executed and got registered on 9-1-76 before Sub-Registrar, Sujangarh by the vendor Nathu Ram, who being a Kalbeliya, is a member of Scheduled Caste and, accordingly in view of bar against sale, transfer and mortgage etc. by any member of Scheduled Caste or Scheduled Tribe under Section 42 of the Rajasthan Tenancy Act, the sale was ab initio void. So the main grievance agitated by the complainant-petitioner was that Nathu Ram as well as Smt. Phooli Devi through accused-non-petitioner Kheta Nath made a false statement before the Sub-Registrar at the time of registration of the sale deed that since Smt. Phooli Devi being a member of Kalbeliya caste, being a member of the Scheduled Caste, the land was transferred by one member of the Scheduled caste to another member of the same caste whereas Smt. Phooli Devi being a Nath (Jogi) was never member of a Scheduled Caste and, instead. Nath (Jogi) subcaste has been recently declared to be amongst the other Backward Classes and, resultantly, the aforesaid persons entered into a criminal conspiracy to cheat the State Government thereby to cause wrongful loss to the Government by way of falsification of a document wherein false description of the vendee has been so given by effecting transfer of the said land contrary to the provisions of Section 42 of the Raj. Tenancy Act and, accordingly, the accused-non-petitioners and Ors. are liable for commission of offences punishable under Sections 420, 467 and 468, I.P.C.

4. The Collector, Churu through the S. P., Churu forwarded this report to the Officer-in-charge, Police Station, Sujangarh whereat an F.I.R. was registered and investigation was taken up. As a result of investigation, it was reported that it was a pure and simple case of civil nature and no offences were found to have been committed by either of the accused-non-petitioners or any other person and hence an F.R. (negative) was submitted before the trial Court. The complainant-petitioner being informed of it, moved protest petition before the trial Court and the learned Presiding Officer of the trial Court, while considering the Protest Petition and so also F.R, submitted by the police, vide his impugned order, held that there were no grounds to believe commission of offences under Sections 420, 467 and 468 read with Section 471, I.P.C. and, conse quently, the accused-non petitioners could not be proceeded against and hence the Protest Petition was dismissed and the F.R. (negative) submitted by the police was accepted resulting in present petition invoking inherent powers of this Court, as above.

5. The learned counsel for the petitioner, while reiterating all the contentions as have been raised in the petition itself, submitted that, as also resulting from the investigation besides the sale deed executed by the vendor Nathu Ram, mutation form wherein the land transferred by Nathu Ram, as above, stands recorded in the "khatedari" of Smt. Phooli Devi wherein her caste has been described as Kalbeliya-Jogi. Besides, Jamabandi as well as the affidavits of Nathu Ram and Madan Nath along with caste certificate issued by the Tehsildar, Sujangarh as well as the Ration Card of the members of the family of the accused-non-petitioner Smt. Phooli Devi, there is no doubt left that the vendee of the land who entered into a transaction of the sale of the agricultural land and that Nathu Ram is member of Nath (Jogi) caste and not Kalbeliya (Jogi) whereas in the sale deed executed by Nathu Ram her casle has been mentioned as Kalbeliya (Jogi) and, consequently the parties to the said transaction of sale and transfer of the agricultural land connived with an intent to deceive the State Government as a result of which Nathu Ram succeeded in effecting transfer of the land by way of sale under a registered sale deed through the agency of the Sub-Registrar, Sujangarh and the accused-non-petitioner Smt. Phooli Devi through the agency of her husband's brother Kheta Nath has benefited out of this fraudulent transaction and, consequently, the sale deed so executed by Sub-Registrar is a false and forged document made for the purpose of cheating and,consequently, there were reasons to believe that offences under Sections 420, 467 and 468 read with Section 471, I.P.C. were made out as resulting from material and documents filed along with the F.R. (negative) by the police. So, the learned trial Magistrate did not appreciate the material on record specially the documents referred to above and filed along with the petition itself and, while citing decision rendered in Smt. Nagawwa v. Veeranna Shivalingappa AIR 1976 SC 1947 : 1976 Cri LJ 1533 has further submitted that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. Consequently, when there were grounds enough before the trial Court to proceed against the accused for their commission of the aforesaid offences, the learned trial Magistrate conveniently overlooked all these facts and circumstances and, consequently, the impugned order so passed by the learned trial Magistrate suffers from serious illegality and infirmity in exercise of its jurisdiction and, therefore, in case the impugned order is allowed to sustain, the same shall occasion a failure of justice and, therefore, it is in the interest of justice that the impugned order be set aside and the learned Magistrate be asked to proceed further against the accused-non-petitioners for the aforesaid offences.

6. Needless to repeat that the complainant-petitioner is wholly stranger to the transaction that was entered into between Nathu Ram and Smt. Phooli Devi. Besides, so far as the alleged sale deed is concerned, he is neither a party to the sale transaction nor was he any witness. He could not have had any direct knowledge about the transaction that was entered into between the parties to the sale. Besides, the complainant lodged a complaint before the Collector and so far as the commission of any offence is concerned, the same report stood transferred to the Police Station, Sujangarh whereat the case was registered and, on completion of its investigation, an F.R. (negative) was filed before the trial Court. The trial Court was of the opinion that there were no grounds to proceed against the accused-non-petitioners for commission of any of the said offences and, therefore did not think it proper to take cognizance of any offence on the basis of police report (negative) by the police in exercise of powers under Section 190(1)(b), Cr.P.C. Accordingly, the question of taking cognizance occurred as soon as the learned Magistrate as such applied his mind to the suspected commission of the offences and, on consideration of the same, held that there were no grounds to believe that any offence as alleged by the complainant-petitioner was committed and, consequently, the final order was passed. Besides, there is no statement from the side of the Sub-Registrar himself or any of the witnesses except Nathu Ram who is executant of the sale deed that the sale deed was registered by the Sub-Registrar on the basis of representation made before it that the purchaser of the land was also a member of the Scheduled Caste being Kalbeliya. Smt. Phooli Devi is not shown to be present either at the time of scribing and execution of the sale deed as well as its registration which is certified to have been presented before the Sub-Registrar by none but its executant Nathu Ram. In case any entry finds place regarding the caste of Smt. Phooli Devi, being described as Kalbeliya (Jogi), it must have been at the instance and behest of none except Nathu Ram himself. He alone appeared before the Sub-Registrar and since, in his own sworn affidavit as well, as late as on 8-10-96, he has attempted to wriggle out and withdraw this admission of his own that Kheta Nath Jogi (Nath) whose field is situated just in his neighbourhood and, accordingly, Nathu Ram could not have been ignorant about the caste of Smt. Phooli Devi which is described by him in the sale deed as Kalbeliya (Jogi) instead of Nath (Jogi) as he now claims in his affidavit.

7. It was the sale deed which became basis for transfer of the agricultural land measuing 11.13 bighas in favour of Smt. Phooli Devi and there is not a single iota of evidence to show that Smt. Phooli Devi ever reported before any authority or witness that she was by-caste Kalbeliya and not Nath (Jogi) by-caste and, that, any how, relying on this statement of her's, Nathu Ram was ever induced to enter into the transaction of sale of the land. Therefore, in absence of total evidence regarding any statement, act or conduct attributed to the accused-non-petitioner Smt. Phooli Devi by no stretch of imagination it could be held that she had either made a false, fraudulent or deceitful statement of fact representing herself to be Kalbeliya (Jogi) by caste and it dishonestly induced Nathu Ram to have entered into the transaction of sale of land in favour of Smt. Phooli Devi. Similarly, the sale deed does not show that Kheta Nath was also party to the transaction that he had, any how, fraudulently or dishonestly induced Nathu Ram to enter into the transaction of sale. On the contrary, none of the accused-non-petitioners is proved to have appeared before the Sub-Registrar to have made any fraudulent or dishonest inducement either to Nathu Ram or to the Sub-Registrar for execution and registration of the saledeed thereby inducing Nahu Ram to deliver the property to Smt. Phooli Devi. Consequently, in case there was initially, any fraudulent intention at the time of transaction of sale of the land, Nathu Ram, as also stated by him, was in dire need of money and, accordingly, he took money as a consideration for sale of the said agricultural land of his 'khatedari' rights to Smt. Phooli Devi accused-non-petitioner and, subsequently, he appeared before the Sub-Registrar representing that he was transferring his 'khatedari' rights as well as title and interest in the land in favour of Smt. Phooli Devi describing her as a member of Kalbeliya (Jogi) so as to overcome the prohibition under Section 42 of the Rajasthan Tenancy Act. However, Nathu Ram has not been proceeded against by the complainant-petitioner in this complaint and, instead, with the aid of Nathu Ram obtaining his affidavit after more than 20 years of the transaction, the petitioner has sought prosecution of the accused-non-petititioners who are having strained relations which the complainant-petitioner since certain litigations are going on between them and, it does not appear inappropriate on the part of the Investigating Officer to conclude that with an intent to wreck vengeance on the accused-non-petitioner, the complainant-petitioner foisted this case on them.

8. Resultantly, neither the State Government through the Tehsildar (Revenue) nor Nathu Ram came out with any grievance before any lawful authority that he stood cheated by way of being induced either dishonestly or fraudulently to enter into this transaction with Smt. Phooli Devi and, consequently, since there does not arise any question of cheating of the complainant-petitioner himself and merely because, unless prohibited or barred by any specific provision of law, any person can set the law in motion, in the aforesaid circumstances, specially when the alleged sale transaction took place before 9-1-76 and a period of 21 years has elapsed since then, the complainant-petitioner, in the aforesaid circumstances, cannot be permitted to invoke inherent powers of this Court thereby taking cognizance of any such offences against the accused-non-petitioners. Consequently, the impugned order does not result in any manifest injustice or occasioning a failure of justice to the complainant-petitioner who appears to have been motivated maliciously to proceed against the accused-non-petitioners and, therefore, in case this petition is accepted and cognizance of any of-fence against them is taken, it shall necessarily infringe on the fundamental rights of the accused-non-petitioners to life and liberty guaranteed under Article 21of the Constitution of India.

9. Consequently, when the vendor Nathu Ram could not have been ignorant and unaware of the caste of Smt. Phooli Devi and, instead, he alone described her as a member of Kalbeliya (Jogi), as above, and there is no record showing that Smt. Phooli Devi herself or with her connivance and knowledge Kheta Nath also made any such false representation in regard to caste of vendee Smt. Phooli Devi either before Nathu Ram or before the Sub-Registrar at any time on or before 9-1-76 and, resultantly, neither Kheta Nath nor Smt. Phooli Devi could be held liable for commission of offences of cheating as described under Section 415 and so also for making any false document thereby committing any offence under Section 467 or 468 simpliciter or with the aid of Section 471, I.P.C. and, consequently, when there were no sufficient grounds for proceeding against the accused thereby warranting taking cognizance of any of such offences by the trial Court, the learned trial Magistrate did not commit any illegality or any irregularity warranting interference with the impugned order and, consequently, since inherent powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a person or otherwise to secure the ends of justice, in the case in hand, as well, the present petition deserves to be dismissed.

10. As a result of above discussion, since this petition is wholly devoid of any merit and, consequently, the same stands dismissed and the impugned order passed by the learned trial Magistrate is affirmed.