Crl. Revision No. 1226 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Crl. Revision No. 1226 of 2010 Date of decision: February 16, 2011 Kulwant Raj @ Kulwant Rai and another ...Petitioners Versus State of Punjab ...Respondent (2) Crl. Revision No. 1279 of 2010 Rajpal Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Rajbir Singh, Advocate, for the petitioners in Crl. Revision No. 1226 of 2010. Mr. H.S. Baath, Advocate, for the petitioner in Crl. Revision No. 1279 of 2010. Mr. PS Paul, DAG, Punjab. GURDEV SINGH, J. (Oral) These revision petitions have been preferred by Kulwant Raj @ Kulwant Rai, Banarsi Dass and Rajpal Singh-petitioners/accused against the judgment dated 5.3.2010 passed by the Additional Sessions Judge (Adhoc), Mansa, vide which he dismissed the appeals preferred by these accused against the judgment dated 7.8.2007 passed by the Chief Judicial Magistrate, Mansa, convicting them for the offences under Sections 419, Crl. Revision No. 1226 of 2010 2 420, 467 and 468 read with Section 34 IPC and sentencing them as under:- 1 Kulwant Raj (i) to undergo rigorous imprisonment for a period of six months under Section 419 IPC and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of one year under Section 420 IPC and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (iii) to undergo rigorous imprisonment for a period of three years under Section 467 IPC and to pay a fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of two months; and (iv) to undergo rigorous imprisonment for a period of three years under Section 468 IPC and to pay a fine of ` 1000/- in default thereof to further undergo rigorous imprisonment for a period of two months; 2 Banarsi Dass (i) to undergo rigorous imprisonment for a period of six months under Section 419/34 IPC and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of one year under Section 420/34 IPC and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (iii) to undergo rigorous imprisonment for a period of three years under Section 467/34 IPC and to pay a fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of two months; and (iv) to undergo rigorous imprisonment for a period of three years under Section 468/34 IPC and to pay a fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of two months; Crl. Revision No. 1226 of 2010 3 3 Rajpal Singh (i) to undergo rigorous imprisonment for a period of six months under Section 419/34 IPC and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of one year under Section 420/34 IPC and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (iii) to undergo rigorous imprisonment for a period of three years under Section 467/34 IPC and to pay a fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of two months; and (iv) to undergo rigorous imprisonment for a period of three years under Section 468/34 IPC and to pay a fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of two months; Baldev Singh, paternal uncle of Satpal (PW-3) was the resident of village Alisher Kalan, District Mansa, and owned agricultural land. Kulwant Raj is the other nephew of Baldev Singh. A loan of ` 35,000/-for the purposes of installation of a tubewell was obtained on 22.2.1998 from the Punjab Agricultural Development Bank Ltd., by mortgaging the agricultural land of Baldev Singh, vide registered mortgage deed dated 19.12.1996 Ex. PW2/E. Satpal complainant made a written complaint to the SSP, Mansa, against the accused with the allegations that Kulwant Raj impersonated himself as Baldev Singh and obtained loan from the bank on the basis of the forged mortgage deed. He narrated therein that the mortgage deed was thumb marked by Kulwant Raj while impersonating as Baldev Singh and at that time, he was identified by the other accused. Even the photograph pasted on the mortgage deed was that of Kulwant Raj. He made a request that investigation be conducted regarding that forged Crl. Revision No. 1226 of 2010 4 mortgage deed. The application was marked to DSP, Mansa, for inquiry and report. After conducting inquiry, the DSP, Mansa, submitted his report that the mortgage deed was forged one and was executed by Kulwant Raj by impersonating himself as Baldev Singh, in the presence of the other accused. Thereafter, FIR Ex. PW10/A was registered against the accused under Sections 419, 420, 467, 468 IPC. The investigation was conducted by Moti Ram SI (PW-5) and in the course of the investigation relevant documents were collected from the bank and the statements of the witnesses were recorded. After completion of the investigation, challan was put in before the Chief Judicial Magistrate, Mansa, who found sufficient grounds for presuming that the accused committed the aforesaid offences. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt, the prosecution examined Suresh Kumar (PW-1), Ved Parkash (PW-2), Satpal (PW-3), Rajinder Singh (PW-4), Moti Ram SI (PW-5), Charanjit Kaur (PW-6), Biker Singh (PW-7), Daljit Singh (PW-8), Sukhdev Singh (PW-9), Jaspal Singh (PW-10), Gurjant Singh (PW-11) and Amrik Singh (PW-12). After the close of the prosecution evidence, the accused were examined by the trial court and their statements were recorded under Section 313 of the Code. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the accused Crl. Revision No. 1226 of 2010 5 that the trial court itself compared the disputed thumb impression of Baldev Singh on the mortgage deed with his admitted thumb impressions and on the basis of its own observations recorded the findings against the accused. According to the Presiding Officer, he made that comparison with the help of one document expert. The trial court should not have assumed the role of the expert and in case such assistance had been taken, that document expert itself should have been examined in the court so as to enable the accused to challenge his opinion by cross-examining him. The finding recorded by the trial court on the basis of its own observations cannot be sustained. He further submitted that there is no other evidence produced on record, on the basis of which it can be concluded that the prosecution was able to prove that the accused forged the mortgage deed. The complainant himself stated in the application Ex. PW3/A that Baldev Singh put his thumb impression on the Will so executed by him in favour of Kulwant Raj. Thus, the prosecution was having admitted thumb impression of Baldev Singh and could have got the same compared with the alleged thumb impression on the mortgage deed. For not producing that evidence, an adverse inference is to be drawn against the prosecution. In the last, they submitted that the accused have already undergone imprisonment for a period of more than six months and the sentence of imprisonment so imposed upon them be reduced to the period already undergone as they had been standing their trial for the long period of 14 years. On the other hand, it has been stated by the learned State counsel that even if the said observations made by the trial court are excluded, still there is sufficient evidence on the record to sustain the conviction of the accused as from that evidence it stands proved that Crl. Revision No. 1226 of 2010 6 Kulwant Raj impersonated himself as Baldev Singh and put his thumb impression as such on the mortgage deed and at that time he was identified by the other accused who attested that document. The prosecution had no opportunity to compare the alleged thumb impression on the mortgage deed with the admitted thumb impression of the accused as they refused to give their specimen thumb impressions and specimen signatures inspite of the fact that an application was moved before the Magistrate during the investigation for that purpose. Therefore, an adverse inference is to be drawn against them on account of that refusal. The power of this Court, while exercising the revisional jurisdiction, is limited one. Re-appreciation and re-appraisal of the evidence is not admissible unless this court comes to the conclusion that the findings recorded by the trial court and upheld by the appellate court are perverse or illegal or based on no evidence or misreading of the same. After perusal of the evidence, this court has come to the conclusion that there is no such perversity or illegality in the findings so recorded against the accused. The trial court also took into consideration the fact that after comparison of the disputed thumb impressions, it was found that the same were not that of Baldev Singh. It is well settled that a court cannot assume the role of expert and in case the assistance is required then it is required to examine the expert in the concerned field. However, even if that observation of the trial court is excluded, there is sufficient evidence on the record to prove the guilt of the accused. Satpal-complainant (PW-3) categorically stated that mortgage deed Ex. PW2/E bears the photograph of Kulwant Raj accused and not that of Baldev Singh. Nothing could be elicited during his cross-examination on the basis of which it can be held Crl. Revision No. 1226 of 2010 7 that reliance is not to be placed on this statement of the complainant. From his statement, it stands proved that it was Kulwant Raj who impersonated himself as Baldev Singh at the time of execution of the mortgage deed and he was identified by the other accused. The other corroborative evidence is the statement of Suresh Kumar (PW-1) from whom diesel engine was purchased with the help of the loan raised from the bank. He stated that the receipt regarding the diesel engine was issued in the name of Baldev Singh but at that time it was Kulwant Raj who had put his thumb impression by impersonating himself as Baldev Singh. It was stated by Moti Ram SI (PW- 5) that after Kulwant Raj was arrested on 14.12.1998, he was produced before the Magistrate on 15.12.1998 but he refused to give his specimen thumb impression. Similarly, he stated that Banarasi Dass accused was arrested on 31.12.1998 and on 1.1.1999 an application was moved before the Magistrate for directing Banarasi Dass to give his specimen thumb impressions/signatures but he also refused to give the same. For this refusal by the accused to give their specimen thumb impressions/signatures, an adverse inference is to be drawn against them. No ground is made out for interfering with the findings of the trial court and upheld by the appellate court, while exercising the revisional jurisdiction. Therefore, the finding of conviction so recorded against the accused is to be maintained. In addition to the above submissions, it has also been submitted by the learned counsel for the accused that Baldev Singh during his life time executed a Will in favour of Kulwant Raj and on the basis of that Will, he has inherited all his property and that loan so obtained from the bank was also re-paid by this accused. Therefore lenient view may be taken. Keeping in view the fact that the accused are standing the trial Crl. Revision No. 1226 of 2010 8 for the last so many years, the sentence of imprisonment so imposed upon them under Sections 467, 468 read with Section 34 IPC is reduced to the period of one year and three months. The accused are stated to be on bail. They be taken into custody to serve the remaining sentence. The revision petitions are dismissed with the said observations. Records of the trial court be returned forthwith. February 16, 2011 (GURDEV SINGH ) prem JUDGE