IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 1970 of 2009 (O/M). Date of Decision : October 21, 2009. Jatinder Singh ...... Petitioner(s). Versus. State of Punjab, and others ..... Respondent(s). CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Rajiv Joshi, Advocate, for the petitioner(s). AUGUSTINE GEORGE MASIH, J. (ORAL). Counsel for the petitioner has submitted that order dated 25.03.2009 (Annexure-P-1), vide which the evidence of prosecution was closed by the Court, is not sustainable for the reason that on that very day, an application was moved by Shri L.S. Dhami, Advocate, who had brought to the notice of the Court that the present petitioner was not available as the summon was not served at his old address and when he came to know about the same, he had asked the counsel to inform the Court about his non availability for the reason that he had gone to Delhi and was not in Jalandhar. He on this basis submits that an opportunity should have been given to the prosecution to produce the petitioner and other witnesses, who had also informed similarly by Shri L.S. Dhami, Advocate, about their being not available. His contention is that order of acquittal dated 27.03.2009, passed by the Trial Court, cannot be sustained for the reason that the prosecution evidence was closed by the Trial Court without taking into consideration the justified reasons given by the witnesses for their non appearance before the Court. CRR No. 1970 of 2009 . Counsel for the petitioner has relied upon the judgment of Karnataka High Court in the case of The State of Karnataka Versus Nallayappa, 1996 Criminal Law Journal, 3539. I have heard counsel for the petitioner and have gone through the order dated 25.03.2009, which according to counsel for the petitioner has been wrongly passed by the Trial Court. A perusal of the same would show that the case pertains to the year 2004, wherein charge was framed on 28.04.2005 and on not less than 20 occasions, summons were duly issued to effect service upon the witnesses on the request of the prosecution. It has further come on record that the summons were even sent through the learned District and Sessions Judge, Jalandhar, but on none of the occasions, the witnesses came present in the Court. The application, reference whereof has been made by counsel for the petitioner, which was submitted by Shri L.S. Dhami, Advocate, before the Court, wherein it was stated that Satwant Kaur, Harbhajan Singh and Jaswant Singh, had given reasons for their non appearance before the Court, were not found to be justified as apart from other reasons there was no power of attorney in his favour on behalf of complainant nor was he authorised to appear on behalf of complainant or to move an application. The said application was also not supported by any affidavit, although, a note was given on the application that he is filing the present application on the basis of telephonic instructions issued by Jitender Singh. The matter being old and already more than 20 opportunities having been granted by the Court for production of prosecution witness, the prosecution having failed to do so, the Court had no option, but to close the evidence of the prosecution. No fault, therefore, can be found in the order -2- CRR No. 1970 of 2009 . dated 25.03.2009, passed by the learned Trial Court. That being so, the order passed by the Trial Court dated 27.03.2009 based on the evidence, which has been produced by the prosecution, is fully justified as is apparent from the perusal of judgment. Paras 13 and 14 deal with the evidence of the prosecution, which is reproduced herein below :- “13. After giving thoughtful consideration to the rival submissions of both the parties and on careful perusal of the evidence adduced in the present case, coupled with due assistance rendered, the court does not find any merit in the submissions put forth by the learned APP for the State. It is worth making mention that the prosecution has examined two witnesses ASI Sukhvir Singh who simply deposed qua arrest of the accused and PW2 Gurdeep Singh has stated qua according of sanction for lodging prosecution against accused Bachittar Singh, Halqa Patwari who was public servant but the prosecution in the present case, has utterly failed to bring home the essential ingredients as to the affidavit of Santokh Singh has been forged as the said document has not been produced on file nor it has been established by cogent and legal evidence as to accused having used the said document and got the revenue record altered to take benefit on the basis of alleged forged document. It was inevitable for the prosecution to firstly establish as to Santokh Singh having died in the year 1984 and further that he has not sworn an affidavit and that it were the accused who have forged the said document i.e. affidavit and had used the same for getting the revenue record changed in their favour. But truly speaking there is not even an iota of evidence to fortify the said fact. It is worth making mention that the charge has been framed against the accused for offence under Section 420 of I.P.C. as to their having committed offence of cheating whereby they have allegedly forged the alleged affidavit by fabricating the same of one Santokh Singh, who has allegedly died in the year, 1984 and further that they have got -3- CRR No. 1970 of 2009 . changed the revenue entries qua khasra girdawaries pertaining to Khasra No. 2205 but neither the revenue record has been produced nor the said fact has been established by way of cogent and legal evidence. 14. Can it be inferred as to the prosecution having established essential ingredients qua both the points of determination and can any reliance be placed to the submissions put forth by the learned APP for the State as to the application having written by learned Deputy Commissioner, Jalandhar ? The answer is certainly in the negative. The Court is of the considered view that it is fit case for affording benefit of doubt to the accused as the prosecution has utterly failed to establish as to accused having forged and fabricated the affidavit of one Santokh Singh who had already died in the year 1984 and that on the basis of alleged affidavit, revenue entries pertaining to khasra No. 2205 have been changed to cause loss to the rightful owner and further the said document which has been forged and fabricated has been used as genuine document. The prosecution has failed to bring home the guilt qua offence, under Sections 420, 465, 468, and 471 of I.P.C.” In view of the above, the order passed by the Court below is fully justified and in accordance with law and, therefore, does not call for any interference by this Court. Dismissed. (AUGUSTINE GEORGE MASIH) JUDGE October 21, 2009. sjks. -4-