GOVT. APPEAL (SJ) No.7 OF 1990 Against the Order of Acquittal dated 4th day of October, 1989 passed by Sri Anirudha Prasad Choudhary, the then 2nd Additional Sessions Judge, Madhepura in Criminal Appeal No. 6 of 1988. THE STATE OF BIHAR------------------------------------------------Appellant Versus 1. RAJENDRA BHAGAT, Son of Shital Bhagat 2. Suresh Bhagat, Son of Jagdish Bhagat 3. Kedar Bhagat, Son of Sukhdeo Bhagat All residents of village Sonamukhi, P.S. Alamnagar, District Madhepura -----------------------------------------Respondents For the Appellant : Mr. Jharkhandi Upadhaya, A.P.P. For the Respondents : Mrs. Reena Sinha, Amicus Curie P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha, J: The State of Bihar has preferred this appeal under section 378(1) and (3) Cr.P.C. questioning the bonafides and correctness of the judgment dated 4.10.1989 passed by Sri Anirudha Prasad Choudhary, 2nd Additional Sessions Judge, Madhepura, in Cr. Appeal No. 6 of 1988, whereby he has acquitted the accused and set aside the judgment and order dated 17.2.1988 passed by Sri Santosh Kumar Sinha, Judicial Magistrate, Madhepura, in Alam Nagar P.S. Case No. 5 of 1976, G.R. No. 298 of 1976. The impugned judgment is sought to be assailed by the learned counsel for the appellant State on the ground of the 2 same being unjustified, unwarranted and misconceived. In this connection it was sought to be submitted that the learned lower appellate court did not take into consideration the ingredients of offences under sections 120 B and 420 IPC which had very satisfactorily been proved against the respondents before the trial court. It was further submitted that the learned lower appellate court failed to take notice of the fact that the major portion of the prosecution case was admitted leaving the prosecutor to do little which he did conveniently. The further grievance of the appellant was that the learned lower appellate court ought to have held that the prosecution witnesses were all dis-interested vis – a – vis the informant and none of them had any grudge against the respondents and instant had wrongly treated prosecution witnesses as untrustworthy which would be apparent from materials on record. In this connection it was submitted that PW 3, Navin Kumar Singh, who was a very important witness for prosecution has been disbelieved simply because his name is not mentioned in the FIR whereas the said PW had supported the prosecution case during investigation and had been cited as a charge sheet witness. Similarly PW 4 who had fully supported the case of the prosecution had been dis-believed simply on the assertions that his presence at the Sub Registry 3 office at the relevant time was not free from suspicion. Similarly PW 5, Chamak Lal’s statement has been treated as that of a hearsay witness when, in fact, in his statement he has asserted that he along with the informant had gone to respondent who had accepted delivery of the pumping set to the informant. The further grievance of the appellant is that the learned lower appellate court had placed much reliance on the fact of the non examination of the Investigating Officer ignoring the fact that the case was a very old one and the trial court could not have waited much longer for the evidence of the Investigating Officer. It was also asserted that the documents produced which had been admitted in a formal way and holding that they do not in any way help the respondent. The learned lower appellate court’s view of treating the informant as an unreliable witness since he was a Surpanch and had passed the middle class only has also been assailed by submitting that the Court ought to have appreciated his evidence since he was a rustic and a simpleton villager amenable to be cheated. In order to come to a considered decision it would only be appropriate to narrate the prosecution story in brief. The informant Jagdish Prasad Singh being in need of a pumping set had approached Krit Narayan Mandal, an agent 4 of Kirloskar Pump sets, in the month of January, 1973, with a request to provide him with a pump set under the Bank Financing Scheme and for the purpose gave to him an application for loan in the prescribed form along with the title deeds and rent receipts of his lands. However, the said Krit Narayan could not provide the desired pump set to the informant and as the dejected informant was returning home in the month of February, 1973 from Uda Kishunganj, the three accused allegedly assured the informant that they would supply him with a Wilson pump set very soon and could also arrange loan for the purpose from the bank. Influenced by the assertions of the accused the informant allegedly handed over his application for loan along with the title deeds and rent receipts of his lands to the accused after taking them back from Krit Narayan. The informant allegedly also executed a registered mortgage deed in respect of his lands in favour of the Land Mortgage Bank, Uda Kishunganj, on 15.2.1972 on the instructions of the accused. It is said that thereafter the accused asked the informant to sign certain papers in advance on the false representation that he would not have to come to Uda Kishunganj every now and then for securing the loan. They also assured to deliver the pump set to the informant at his door step as soon as the loan was sanctioned to him. The 5 accused are said to have the agency of Wilson pump sets and carry out business from their shop running in the name and style of “Punam Machinery Store” at Uda Kishunganj. It is further stated that since the accused were residents of the neighbouring village the informant had no reason to dis- believe them or their assurances and signed the papers in advance as he was requested to do by the accused. However, even after a lapse of three years the accused avoided supplying the pump set to the informant under one pretext or the other and then finally they on 20.12.1975 refused to supply the pump set on the plea that the application for loan had not been sanctioned by the Bank. The accused are also said to have avoided returning the documents of the informant as also the blank papers that he had signed in advance on the plea that they had not been received back from the bank office. Having failed to procure the pump set the informant reconciled to fate but was rejuvinated on receiving on 5.2.1976 a demand notice from the Land Mortgage Bank, Uda Kishunganj and on inquiry it transpired that a loan of Rs. 5000/- had in fact been sanctioned to the informant by the Land Mortgage Bank, Uda Kishunganj which had been withdrawn by the accused persons. The informant is said to have unsuccessfully approached the accused persons 6 personally and also through the Mukhia and Sarpanch for the refund of the loan amount or for the delivery of the pump set and finally on 15.2.1976 the accused refused to return the loan amount or to supply a pump set to him. In the aforesaid circumstances a complaint was filed before the Sub Divisional Judicial Magistrate, Madhepura who sent the same to the concerned P.S. under section 156(3) Cr.P.C. Accordingly a police case was registered and after due investigation a charge sheet was submitted against three accused. The defence of the accused as would appear from the trend of cross examination is that the alleged loan as applied for had been sanctioned to the informant by the Land Mortgage Bank, Uda Kishunganj and he was also given delivery of the pump set by the accused but the informant with dis-honest intention to avoid paying back the loan amount to the bank had brought a false case on concocted ground falsely impleading the accused. In view of the respective cases of the party and the defence set up by the accused it appeared to the lower appellate court that three facts have been admitted by the appellant namely (1) that the informant had applied for loan to the Land Mortgage Bank, Uda Kishunganj to purchase a pump set under a bank financing scheme. (2) that the loan 7 applied for was sanctioned to the informant and (3) that the informant had mortgaged his land to secure the loan. The lower appellate court sought to resolve the controversy by framing an issue as to whether a pump set had indeed been delivered to the informant by the accused as alleged by them or whether the accused had pocketed the loan money sanctioned in favour of the informant without actually delivering the pump set to him. As a follow up of the issue the question framed was that if the allegation of the informant against the appellant is correct then there would arise a question whether the informant had delivered to the accused valuable security like signatures on certain papers in advance and if so whether the same were obtained by the accused with dishonest intention to cheat the informant. I have had the privilege of perusing the materials on record as also the judgments of the trial court and the lower appellate court. The prosecution has examined as many as 9 witnesses in support of its case of whom P.W. 1, Randhir Singh, P.W. Jagdish Narain Dubey are formal witnesses, P.W. 8 Punjabi Singh had been declared hostile and P.W. 9 Ram Kisun Sharma was tendered for cross examination. Therefore, non of these four witnesses have lent any support 8 to the prosecution cause and nothing has been elicited from them to help the prosecution case. P.W. 3, Navin Kumar Singh and P.W. 4, Kailash Prasad Singh do not appear to be reliable witnesses. The reasonings assigned by the lower appellate court is that P.W. 3 had not been named as witness in the complaint petition by the informant although the same was filed after a considerable time. P.W. 3 in course of his evidence in court has admitted that he was present when the application for loan was filled and was handed over to the accused by the informant along with his title deed and rent receipts. He also claimed to be present when the accused got the signatures of the informant on certain papers in advance. He also claims to have accompanied the informant to the appellants for demanding the pump set. This witness appears to be a co-villager and a close neighbour of the informant and if he had participated or had been present with the informant at all relevant transactions. It would to be hardy to believe that the informant had missed to name such an important witness as his witness in the complaint petition . In the circumstances, to my mind, the learned lower appellate court had rightly observed that the non naming of these witness in the complaint petition clearly indicates that 9 PW 3 was not present at the transaction regarding which he had deposed and his evidence has been secured out of necessity. The learned lower appellate court further went on to hold that if the evidence of this witness is to be believed then all the transactions that he had witnessed as narrated in his deposition took place in one go but the prosecution case is otherwise which reveals that the informant gave his application for loan to the accused and after a few days thereafter the accused asked him to execute a registered deed of mortgage in favour of the Land Mortgage Bank, Uda Kishunganj and thereafter they asked the informant to sign on certain papers in advance so that he might not have to visit Uda Kishunganj repeatedly to secure the loan. The deposition of P.W. 4, Kailash Prasad Singh, is that the informant executed a registered mortgage deed in favour of the Land Mortgage Bank on the instruction and request of the accused and that the informant had also signed in his presence certain papers on the representation of the accused who took those papers in their possession. The finding of the learned lower appellate court is that this witness also does not appear to be reliable for the reasons that he says that on 15.2.1973 he had gone to the Registry Office at Uda Kishunganj to get some lands registered in his favour by 10 one Swaroop Rishideo and had admitted that the land had not been registered in his favour either on that day or any other subsequent dates. The witness also could not produce the order sanctioning the transaction of Swaroop Rishideo on the plea that the said sanction order passed by the B.D.O. got lost. The observation of the learned lower appellate court is that “ it is therefore easy for a person to become an eye witness of a fact if he has not to prove it”. The learned lower appellate court also came to the finding that P.W. 4 was neither an attesting witness nor an identifying witness to the mortgage deed executed by the informant in favour of the Land Mortgage Bank and as such this witness has nothing to prove his bona fides of being present at the time of registration of the mortgage deed and also at the time when accused had obtained the signature of the informant, in advance on certain papers. Having perused the evidence on record I am in full agreement with the finding of the learned lower appellate court. P.W. 5, Champak Lal Singh admittedly is a hearsay witness as he came to learn every thing from the informant including the fact that the accused had not delivered the pump set to the informant . No reliance can obviously be put on the testimony of such a witness. 11 P.W. 6, Kulanand Singh has sought to support the prosecution case and claims to have been present at the time of execution of the registered mortgage deed in favour of the Land Mortgage Bank and he had also seen the informant sign certain papers on the request of the accused which the accused had taken in their possession. Admittedly Kulanand Singh had been named in the complaint petition and also supported the prosecution case but the question which haunted the mind of the learned lower appellate court was why there was no explanation as to why Narsingh Ram, named in the witness in the complaint petition, had not been examined. It is available in his evidence that when the accused had refused to deliver the pump set to the informant he had sought help from the Mukhia and Sarpanch . The fact of seeking help from Mukhia and Sarpanch is available in the complaint petition itself but the question which remains to be answered is why the Mukhia and Sarpanch who played such a vital role in requesting the accused to hand over the pump set to the informant had not been made to figure as witnesses in the case notwithstanding the fact that they were very important witnesses and their evidence had the value that it was in their presence that the accused had impliedly admitted having withdrawn the loan money from the bank 12 sanctioned in favour of the informant by promising to supply a pump set to the informant at an early date. The learned lower appellate court had rightly drawn a presumptive opinion that from the non examination of these important witnesses an adverse inference has to be drawn against the prosecution. P.W. 7 is the informant and he has naturally supported the prosecution case even though it may have been a false case. The reasons assigned by the learned lower appellate court for disbelieving this witness are righteous enough and cannot be disputed. Admittedly, the informant, as per his own evidence, is a literate person and had been Surpunch of Ratwera Gram Panchayat for 14 long years, He must therefore be presumed to be worldly wise and literate. It is difficult to believe that such a person would transact with a person he did not even know and handover to him valuable security. Admittedly too the informant and the accused were residents of two different villages falling under two different but adjacent Gram Panchayats and the reasoning which rightly weighed with the Court and the observations of the learned lower appellate court that if the informant was such a frivolous man as to believe a stranger and deliver valuable security to them then only God can help the 13 informant in his case against the accused. This to my mind appears to be a correct reading of the situation. The learned lower appellate court has also correctly negatived the reliance of the learned Judicial Magistrate upon the inadmissible facts contained in certain certificates and true copies issued by the bank by resorting to the provisions of section 294 Cr.P.C. As per the ordinary norms of the bank under the financing scheme the loan amount is not delivered to the applicant but a cheque is presented to the supplier on proof of delivery of the article to the customer through delivery chalan duly signed by the customer. In these circumstances it would be difficult to believe that the accused had withdrawn the loan money from the bank without chalan duly singed by the customer having been furnished before it. The prosecution does not appear to have proved the case that no pump set was delivered to the informant. It has also failed to prove that the informant had signed the delivery chalan and the receipt in advance on representation of the accused. To the contrary the evidence of P.W. 8 Punjabi Singh goes against the prosecution case. He has stated in course of his cross examination that he had one occasion to visit the house of the informant some 12 – 13 years back and at that time he 14 had seen a pump set at the house of the informant . P.W. 8 was examined in court on 5.12.1986 and the alleged non transaction of supply of Wilson pump set is said to have taken place around the period 1972 – 1975 . It is true that this witness had been declared to be hostile but that by itself does not exclude the court from looking into his evidence and taking support their from in order to do justice. For the reasons assigned above I do not find any apparent reason to differ with the findings and the judgment of the learned lower appellate court which is hereby upheld and this appeal preferred by the State of Bihar is accordingly dismissed. Patna High Court, Patna. Dated : The 7th of August, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)