1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 84 of 2011. Judgment reserved on : 30.08.2011. Date of decision: 12.10.2011 Shiv Kumar. ......Petitioner. Versus Gurmail Singh & anr. ......Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. M.S.Guleria, Advocate. Kuldip Singh , Judge. The complainant has filed this revision against the order dated 10.03.2011 passed by learned Judicial Magistrate Ist Class (3), Una, in case No. 76-II/05/97 discharging the respondents for offence punishable under Sections 465, 471 read with Section 34 IPC. 2. The facts, in brief, are that petitioner had filed complaint against respondents and one Hardeep Saini under Sections 192, 196, 198, 463, 464, 466, 469, 471, 120-A and 34 IPC on the allegations that petitioner served Indian Army from January, 1991 to September, 1991 as Sepoy and was discharged from service on compassionate grounds. The petitioner was neither terminated from Army on the ground of indiscipline nor he was punished under Army Act. The petitioner never ran away from the Unit without leave. 3. The father of the petitioner also served Indian Army and died during war and, therefore, mother of the petitioner became war- 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 widow. The petitioner prior to his service in the Army and after discharge from Indian Army was dependent on his war-widow mother. 4. In the year 1994, Indian Oil Corporation proposed to appoint dealers for retail outlets and to this effect an advertisement was issued on 10.01.1994 which was also published in the Tribune calling upon applications from the candidates belonging to (i) Widows/dependents of posthumous Gallant Award Winners, (ii) War disabled, (iii) War Widows/dependents, (iv) Widows/dependents of those who died. 5. The candidate should be a resident of Himachal Pradesh for five years preceding the date of filing of the application. The other condition was that candidate applying for obtaining the dealership of retail outlet should not be convicted, being tried for any criminal offence involving moral turpitude and/or economic offence ( other than freedom struggle) and against whom the charges have been framed by the Court ( other than freedom struggle) would not be eligible for dealership/distributorship. 6. The petitioner was the applicant for obtaining the dealership of petrol and petroleum products. The respondent No.2 Anil Kumar was also one of the candidates for obtaining dealership of petroleum products. The Letter of Intent of dealership was issued to petitioner on 11.05.1994 and thereafter operation of the outlet started. 7. It has been alleged that respondents and Hardeep Saini made pre-arranged plan to cancel the dealership of retail outlet of petitioner, they agreed to prepare a false , forged and fabricated certificate to the effect that complainant was discharged from Army 3 service being an indiscipline soldier. The petitioner ran away from unit two times without leave and was punished under Army Act. They also fixed the seal upon the false , forged and fabricated certificate . The false certificate does not bear signatures of competent Authority. The false, forged and fabricated certificate was used by respondent No.2 Anil Kumar in CWP No. 155 of 1997 which was filed against petitioner and others for cancellation of dealership of retail outlet of petitioner. 8. The respondents and Hardeep Saini with common intention and without lawful authority dishonestly, fraudulently altered the original certificate. The petitioner has been lowered in the estimation of friends, relatives and society. The business of the petitioner has been affected. The false certificate was filed by respondent Anil Kumar intending that such false certificate may appear in evidence in judicial proceedings in CWP No. 155 of 1997. On these allegations, the complaint was filed by the petitioner. 9. The learned Judicial Magistrate on 08.01.1999 ( wrongly shown 08.01.1998 in the trial Court file) issued process against respondents under Sections 465, 471 read with Section 34 IPC, no prima-facie case was found against Hardeep Saini. The respondent No.1 filed Cr.MMO No. 33 of 2001 against the summoning order dated 08.01. 1999 which was dismissed on 24.08.2001. 10. The petitioner filed an application under Section 319 Cr.P.C. for impleading Hardeep Saini as an accused, which was allowed by learned Additional Chief Judicial Magistrate on 12.07.2004 and impleaded Hardeep Saini as an accused. The learned Sessions Judge on 01.04.2005 upheld the order dated 12.07.2004 impleading Hardeep Saini 4 as an accused. The order dated 12.07.2004 was quashed in Cr.MMO No. 60 of 2005 on 06.06.2008. The parties were directed to appear before the trial Magistrate on 28.07.2008, but in absence of complainant and his counsel, the complaint was dismissed on 28.07.2008. The order dated 28.07.2008 was assailed by way of revision and learned Additional Sessions Judge on 26.12.2009 dismissed the revision against the order dated 28.07.2008 being not maintainable. The order dated 28.07.2008 was then assailed in Criminal Appeal No. 114 of 2010 which was allowed on 06.12.2010 and the order dated 28.07.2008 was set-aside. On 10.03.2011 the learned Judicial Magistrate has passed the impugned order. 11. I have heard learned counsel for the parties and have also gone through the record. On behalf of the petitioner, it has been submitted that the learned trial Magistrate has mis-construed and mis- interpreted the material on record and has erred in discharging the respondents. On the contrary, on behalf of the respondents, it has been submitted that the learned Magistrate committed no wrong in discharging the respondents inasmuch as from the pre-charge evidence no case is made out for framing the charge against the respondents. The learned counsel for the respondents has supported the impugned order. 12. CW-1 Shiv Kumar has stated that petrol pump was allotted to him in the year 1994. He has stated that the accused in connivance with each other prepared a false certificate, photocopy Mark CW1/E. Anil Kumar accused had filed writ petition in the High Court and when he received notice of writ at that time he came to know about document Mark CW1/E. He got issued legal notice through his Advocate to 5 Ministry of Defence and got the reply and in the reply the Army Authorities took the stand that the certificate is forged. Jagdish Ram told him that certificate is forged. He has no personal knowledge that respondent No.1 Gurmail Saini is involved in preparation of aforesaid certificate. 13. CW-2 Harbilas Chander,Advocate, has stated that on behalf of the petitioner, he had issued notice dated 24.07.1997 Ex. CW2/A to the Secretary, Ministry of Defence. He received replies Ex. CW2/F and Ex. CW2/G. CW-6 Subedar Baljeet Singh has stated that Jitender Sindhu is the Commanding Officer of his Regiment. He identifies his signatures as he has worked under him. Certificate Ex. CW2/G is signed by Jitender Sindhu and he identifies his signatures. The letter Ex. CW6/A has been issued by his department which is signed by Major Adit Saxena, he identifies his signatures. Ex. CW6/B and certificate Ex. CW6/C are also issued by his department. Ex. CW6/C bears the signatures of Major Ajay Chandpuria. Mark-Z has not been issued by his department. CW-7 (wrongly shown CW-6 in trial Court file) Naresh Kumar , Clerk, Judicial Branch, H.P.High Court has stated that he has brought the record of CWP No. 155 of 1997. He has stated that Ex. CW6/B is the laminated copy of certificate filed by Praneet Gupta, Advocate. 14. The petitioner has alleged that respondents and Hardeep Saini prepared a false, forged and fabricated certificate that the complainant was discharged from Army service being an indiscipline soldier, he ran away from Unit two times without leave and was punished under Army Act. They fixed the seal upon the false, forged and 6 fabricated certificate which does not bear signatures of any competent Authority. The false certificate was used by respondent No.2 Anil Kumar in CWP No. 155 of 1997. The petitioner while appearing as CW-1 has placed on record certificate Mark CW1/E which according to him is false and fabricated certificate which was filed by respondent No.2 Anil Kumar in the writ petition filed in the High Court. CW-7 has placed on record Ex. CW6/B from the record of CWP No. 155 of 1997. Ex. CW6/B, Mark CW1/E and Ex. CW6/C are the copies of the same document. In fact, Ex. CW6/B, Mark CW1/E and Ex. CW6/C are copies of two certificates. On first certificate on CW6/B, Mark CW1/E and Ex. CW6/C, there is no signatures of the issuing Authority, however, second certificate on Ex. CW6/B, Mark CW1/E and Ex. CW6/C is signed by Major A. Chandpuria. It appears the petitioner has no grievance with respect to second certificate issued by A. Chandpuria reflected on Ex. CW6/B, Mark CW1/E and Ex. CW6/C. The petitioner has grievance with respect to first certificate on Ex. CW6/B, Mark CW1/E and Ex. CW6/C which does not bear the signatures of the issuing Authority. According to petitioner, first certificate on Ex. CW6/B, Mark CW1/E and Ex. CW6/C has been forged by respondents and Hardeep Saini and was used by respondent No.2 Anil Kumar in CWP No. 155 of 1997. 15. The petitioner in his statement as CW-1 has stated that he has no personal knowledge that respondent No.1 Gurmail Saini is involved in preparation of aforesaid certificate. He has also stated that Jagdish Ram told him that certificate is forged. The petitioner has not examined Jagdish Ram nor there is an opinion of handwriting expert to the effect that first certificate on Ex.CW6/B, Mark CW1/E and 7 Ex. CW6/C is forged. The petitioner has also not examined Praneet Gupta, Advocate, to prove that certificate in question was given to him by respondent No.2 Anil Kumar nor original of certificate Ex. CW6/B, Mark CW1/E and Ex. CW6/C has come on record nor there is an explanation where is the original of CW6/B, Mark CW1/E and Ex. CW6/C. 16. The petitioner has relied Ex. CW2/F letter dated 18.12.1997 issued by G.N.Samy, Captain, Record Officer for Officer-in-Charge Records that certificate dated May, 1996 has been correctly issued by Major A. Chandpuria, Adjutant 16 Dogra. Another certificate allegedly issued by 16 Dogra without any signature of the issuing authority has no legal validity. In Ex. CW2/F, it has not been stated that other certificate issued by 16 Dogra is forged and fabricated. The petitioner has also relied Ex. CW2/G certificate dated 26.07.1997 issued by Jitendra Sindhu, Major, Officiating 2nd-in-Command for Commanding Officer to the effect that certificate stating that the individual ran away from the Unit has never been issued by this Unit and is a forgery. These contents of Ex. CW2/G have not been connected with first certificate reflected on Ex. CW6/B, Mark CW1/E and Ex. CW6/C. Moreover, neither CW-2 Harbilas Chander nor CW-6 Subedar Baljeet have proved the contents of Ex. CW2/G. CW-6 at the most has identified the signatures of Major Jitendra Sindhu on Ex. CW2/G, but he has not proved the contents of Ex. CW2/G so as to connect contents of Ex. CW2/G with the contents of first certificate on Ex. CW6/B, Mark CW1/E and Ex. CW6/C. 17. In Ramji Dayawala & Sons (P.) Ltd., v. Invest Import AIR 1981 SC 2085, it has been held that mere proof of the handwriting 8 of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. 18. The process was issued by the trial Magistrate against respondents under Sections 465, 471 read with Section 34 IPC. Section 465 IPC provides punishment for forgery which has been defined in Section 463 IPC. Section 471 IPC is of using as genuine a forged document and making a false document has been provided in Section 464 IPC. The petitioner has filed the complaint alleging that respondents and Hardeep Saini forged first certificate reflected on Ex.CW6/B, Mark CW1/E and Ex. CW6/C. Hardeep Saini has already been discharged and discharge order of Hardeep Saini has attained finality. This creates a dent in the case of the petitioner that respondent Hardeep Saini also forged the document in question. 19. CWP No. 155 of 1997 was disposed of on 03.08.2004 with the observation that Shiv Kumar ( petitioner herein) has filed Civil Suit No. 256/1998 before Sub Judge Ist Class ( re-designated as Civil Judge (Junior Division), Court No.II,Una) against Gurmail Singh Saini, Hardeep Saini and Anil Kumar challenging the certificate issued by 16 Battalion Dogra Regiment dated May, 1996 being forged, therefore, null and void ab-initio in the eyes of law. In CWP No. 155 of 1997, this Court granted liberty to Anil Kumar to raise all available defences as 9 permissible under law before the trial Court in the said suit. In case the suit of Shiv Kumar ultimately is dismissed by the trial Court, Anil Kumar is at liberty, if he so chooses, to represent the Indian Oil Corporation for cancellation of the dealership outlet allotted to Shiv Kumar. The writ petition was disposed of without going into the merits of the case. At the time of hearing of the petition, it has not been disclosed from either side what happened to the Civil Suit filed by petitioner herein in the Court at Una. This apart, the learned Court below has rightly appreciated the material on record. There is no legal evidence on record so as to frame a charge against respondents under Sections 465, 471 read with Section 34 IPC. There is no merit in the petition and the same is dismissed. ( Kuldip Singh ), Judge. October 12, 2011 (Krt/gr)