IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 Date of decision : 27.4.2010 1. Amar Singh … Petitioner Vs State of Punjab …Respondent 2 Inderjit Singh and others … Petitioners Vs State of Punjab …Respondent CORAM : HON’BLE MR.JUSTICE JORA SINGH Present: Ms.Rakhi, Advocate for the petitioner. Ms.Simsi Dhir Malhotra, AAG, Punjab. Jora Singh, J. Crl.Revision Nos.1728 of 2004 has been filed by Amar Singh and Crl.Revision No.1729 of 2004 has been filed by Inderjit Singh and others to challenge the judgment dated 23.8.2004 rendered by Sessions Judge, Sangrur vide which appeal against the judgment dated 30.7.2003 passed by Sub Divisional Judicial Magistrate, Dhuri, in complaint case No.30 of 21.8.1996, was dismissed. The State of Punjab through Civil Judge (Sr.Divn.) Sangrur, filed complaint under Sections 467, 468, 471 and 193 read with Section 34 IPC against Inderjit Singh, Kartar Singh, Saudagar Singh and Amar Singh on the allegation that Gurbax Singh died on 3.3.1986 and his property was claimed by his widow Mohinder Kaur being his natural heir by filing Civil suit No.193, Inderjit Singh, Kartar Singh, Saudagar Singh claimed property on the basis of Will dated 28.2.1986. Will dated 28.2.1986 was set up by the Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 opposite party i.e. defendants, who are the petitioners in this case. Civil suit instituted by Mohinder Kaur was decreed. Civil Court opined that Will set up by Inderjit Singh and others was forged and fabricated. Against the judgment and decree dated 14.6.1988, appeal was preferred by the petitioners but the same was dismissed on 28.9.1989. After decision by the civil court, complaint was presented. Petitioners appeared before the court and charges under Sections 467, 468, 471 and 193 read with Section 34 IPC were framed. Six witnesses were examined by the prosecution. PW-1 Rajinder Singh, Clerk of Pavittar Singh Grewal, Advocate stated that in the civil suit, affidavit of Gurbax Singh is Ex.‘A5’. PW2 Manohar Lal, Advocate, stated that in civil suit No.351 dated 4.10.1979 filed by Kartar Singh, Gurbax Singh had executed a power of attorney in his favour and the same was exhibited as Ex.A-2 and written statement was also filed by Gurbax Singh and the same is Ex.A3. PW-3, Assa Singh, Record Keeper, Distrcit and Sessions Judge, Sangrur stated that Mohinder Kaur filed suit No.193/356 of 13.5.1986/30.8.1986 and the same was decided on 14.6.1988. Statement of Kartar Singh was recorded. Copy of the same is Ex PW3/A. Statement of Amar Singh was also recorded. Copy of the same is Ex.PW3/B. Statement of document expert is Ex. PW3/C. PW4 Balwant Singh Dhindsa, Advocate stated that Kartar Singh had filed suit No.352 dated 4.10.1979 decided on 4.4.1981 where Gurbax Singh was one of the defendants. He had engaged him and thumb marked Vakalatnama (Ex.P2) was given. Written statement was also filed on behalf of Gurbax Singh. Gurbax Singh put his thumb impression on it. The same is Ex.P-3. Application under Order 39 Rules 1 and 2 CPC dated 2 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 11.10.1979 was filed which was thumb-marked by Gurbax Singh. Copy of the same is as Ex.P5. PW5 Dr.Atul Kumar Singla appeared as hand writing and finger print expert and submitted his report (Ex. PW6/A) dated 23.3.1988 in suit No.350 of 4.10.1979 decided on 4.4.1981. He had proved the signatures of Diwan K.S.Puri on the report. PW-6 Karnail Singh stated that he was the attorney of Mohinder Kaur. Gurbax Singh was blind and bed ridden. He was admitted in the hospital. Mohinder Kaur is legal heir of Gurbax Singh. Opposite party has forged a Will by impersonation. In the civil suit, Will was declared as forged and fabricated. Will was also witnessed by Kartar Singh. Copy of the judgment and decree sheet, power of attorney and the orders (Ex.P1, P2, P3, P4 and P5) were tendered in evidence. Accused were served with the notice in terms of Sections 467, 468, 471 and 193 read with Section 34 IPC and have been apprised of the accusation. They denied all the allegations and pleaded to be innocent. Ultimately, after hearing learned Public Prosecutor, defence counsel for the petitioners and perusing the evidence on the file, trial court opined that petitioners committed offences punishable under Sections 467, 468, 471 and 193 read with Section 34 IPC and were sentenced. Feeling aggrieved, petitioners preferred appeal but the same was dismissed vide impugned judgment. I have heard learned counsel for the petitioners, State counsel and gone through the evidence on the file. Learned counsel for the petitioners argued that Diwan K.S.Puri had compared the disputed thumb impression on the Will with the standard thumb impressions but Diwan K.S.Puri was not examined. Dr.Atul Kumar 3 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 Singla appeared as witness but his statement is without any evidentiary value. He had not compared the disputed thumb impression with the standard thumb impression of Gurbax Singh. Civil suit filed by Mohinder Kaur was decided vide judgment and decree dated 14.6.1988 but the complaint was not filed by the same Presiding Officer. Judgment of the Civil Court is not binding on the criminal Court. There is no cogent and convincing evidence on record that the standard thumb impressions with which the disputed thumb impressions on the Will were compared, were of Gurbax Singh. Mere judgment of Civil Court is not sufficient to prove commission of alleged offence by the petitioners. Evidence on file is to be scrutinised to opine whether the offence punishable under the IPC was committed by the petitioners. Petitioners also got the documents examined from the expert who reported that disputed thumb impression is of right hand whereas standard thumb impression is of the left hand. All these points were not taken into consideration by the first Appellate Court. State counsel argued that civil suit was instituted by Mohinder Kaur on the allegation that she is the sole owner in possession of the land, earlier owned by her husband Gurbax Singh. Petitioners, Inderjit Singh, Kartar Singh, Saudagar Singh were the defendants. Will dated 28.2.1986 was set up by the petitioners. There is finding of the court that Will set up by the petitioners is forged and fabricated document. Judgment and decree of the Civil Court was upheld by the first Appellate Court. No RSA was filed, whereas the Court opined that Will set up by the petitioners is a forged and fabricated document, then the complaint was instituted. During pendency of appeal, Mohinder Kaur filed application for launching prosecution against Inder Singh and others. 4 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 Mohinder Kaur was advised to agitate about the said application before the lower court. With this observation qua the pendency of the application, appeal was dismissed vide judgment dated 28.9.1989. After decision of the application, then complaint was filed by the predecessor of the Senior Sub Judge who had decided civil suit on 14.6.1988 in favour of Mohinder Kaur. After decision of the appeal, judgment and decree dated 14.6.1988 has become final. No finding of the Appellate Court that Will dated 28.2.1988 was genuine one. Once the Will was held to be forged and fabricated then criminal complaint was entertained after disposal of the application under Section 340 of the Code of Criminal Procedure. Revisional Court can not re-assess and re-evaulate the evidence on file and in case there is legal infirmity, only then revisional court is to interfere. Admittedly, Gurbax Singh was owner of the land bearing different khasra numbers situated in the revenue estate of village Bahadurpur. Allegation of Mohinder Kaur was that she is the sole legal heir of Gurbax Singh, who had not executed any Will in favour of any one. Civil suit was contested by the petitioners on the allegation that Gurbax Singh had executed a valid Will dated 28.2.1986 in their favour. Controversy between the parties was whether Mohinder Kaur is the owner in possession of the land or on the basis of Will dated 28.2.1986 petitioners are the owners of the disputed land. Evidence was led by both the parties. Disputed thumb impression of Gurbax Singh i.e. Q1 to Q5, were compared with standard thumb impression of Gurbax Singh i.e. on the power of attorney and application. The expert opined that disputed thumb impression was not tallying with standard thumb impression of Gurbax Singh. Ultimately, court opined that Will dated 28.2.1986 set up by the petitioners 5 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 is a forged and fabricated document. Against the judgment and decree dated 14.6.1988, appeal was preferred. When appeal was being disposed of then it was brought to the notice of the first Appellate court that application under Section 340 Cr.P.C. moved by Mohinder Kaur is pending, then Mohinder Kaur was advised to agitate and pursue the said application. As observed by the first Appellate Court, application under Section 340 Cr.P.C. was disposed of and complaint was instituted by the predecessor of the Court of Senior Sub Judge who had initially decided the case in favour of Mohinder Kaur on 14.6.1988. Against the said judgment and decree, no Regular Second appeal was filed meaning thereby judgment of the lower court dated 14.6.1988 has become final and is binding upon the parties. The contention of learned counsel for the revisionists- petitioners is that Diwan K.S.Puri, had submitted his report to the civil court to the effect that disputed thumb impressions i.e. Q1 to Q5 are not tallying with the standard thumb impressions of Gurbax Singh but expert was not examined but Dr.Atul Kumar Singla was examined. Submission of the learned counsel for the revisionists/petitioners seems to be not correct one. Civil suit was pending, at that time. Diwan K.S.Puri was alive. Diwan K.S.Puri appeared as an expert to prove his report. After decision of first appeal when complaint was instituted and evidence was being led at that time, Diwan K.S.Puri was not alive. Dr.Atul Kumar Singla who was also an expert appeared and stated that he identify the signatures of Diwan K.S.Puri on the report because he had seen him while writing and signing. When the report of Diwan K.S.Puri was being exhibited at the time of evidence, because he was not alive, then remedy with the prosecution was to produce some one who could identify the signatures of Diwan K.S.Puri on his report. 6 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 After death of Diwan K.S.Puri, prosecution was not in a position to produce him to prove the report, Dr.Atul Kumar Singla who was an expert and was working with Diwan K.S.Puri and was seeing Diwan K.S.Puri while writing and signing, appeared to support the report. So with non-appearance of Diwan K.S.Puri story was not to be ignored. Second contention of the learned counsel for the petitioners was that disputed thumb impressions i.e Q1 to Q5 are of right hand whereas standard thumb impressions are of the left hand. As discussed earlier, Will was set up by the petitioners. Amar Singh was the marginal witness and he was to state whether on the disputed Will, Gurbax Singh had affixed his right thumb impression or left thumb impression. Expert namely Navdeep Gupta produced by the petitioners stated that disputed thumb impressions do not tally with the admitted thumb impressions of Gurbax Singh. Further stated that disputed impressions are of right hand whereas admitted thumb impressions are of left hand but evidence on the file shows that at the time of execution of Will Gurbax Singh was in the hospital and death was after three days i.e. 3.3.1986. Before the execution of Will dated 28.2.1986, no document was executed by Gurbax Singh by affixing his right thumb impression. Expert produced by the petitioners can only state that disputed thumb impressions are of right hand if thumb impressions of both the hands i.e. left and right of Gurbax Singh were available for comparison. Expert produced by Mohinder Kaur reported that disputed thumb impressions on the Will do not tally with admitted thumb impressions of Gurbax Singh. Expert produced by the petitioners also reported that disputed thumb impressions do not tally with the standard thumb impression of Gurbax Singh. Only argument of the petitioners is that disputed thumb 7 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 impressions are of right hand and the same were not compared with the standard thumb impressions of right hand of Mohinder Singh. When there is no other document thumb marked by Mohinder Singh by his right hand, then there was no question of comparison of the disputed thumb impression with the admitted thumb impression of right hand of Mohinder Singh. Next contention of learned counsel for the petitioners is that judgment of the civil court is not binding upon the criminal court. After submitting complaint, no evidence was led that the Will was forged and fabricated document. In support of this contention, learned counsel for the petitioners cited Syed Askari Hadi Ali Augustine Imam and another Vs. State (Delhi Admn.) and another, (SC) 2009(2) RCR (Criminal) 520. In this case, dispute was regarding genuineness of Will dated 3.5.1998 executed by Shamim Amna Imam who expired on 3.5.1998 but there was no finding of the Civil Court that Will is genuine or not. In Rukmini Narvekar Vs. Vijaya Satardekar and others (SC) 2008(4) RCR (Criminal) 924, FIR was got registered under Sections 409, 420, 424 IPC etc. on the allegation that complainant was an illiterate and her husband was also illiterate. Accused who was an Advocate fraudulently and dishonestly induced them to place their signatures and thumb impressions on some papers in the office of the Executive Magistrate without explaining the contents thereof, and falsely misrepresenting that the same was necessary to give him necessary authority to represent them in the Court in Inventory Proceedings on the death of Andre Andrade. Actually power of attorney was executed in favour of the accused who was advocate to defend in a case but the power of attorney was used by the accused for executing a sale deed in favour of his wife and others. After investigation, challan was presented, then accused party filed a criminal revision which 8 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 was dismissed and against the order, petition was filed before the High Court. There was no finding by the Civil Court that sale deed is genuine one or not. In Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another (SC), 2005 (3) J.T.195, One Mukhtar Singh Marwah was owner and died on 3.6.1993. Appellants No.1 and 2 were real brothers of Marwah whereas respondents No.1 and 2 are widow and son. Appellant No.1 filed a Probate petition on the basis of Will and the case was contested on the allegation that Will was forged. Under Section 340 Cr.P.C., application was moved by the respondents to file a criminal complaint against appellant No.1 on the allegation that Will, set up by him was forged. After reply, application was not disposed of, then respondents filed a criminal complaint under different sections of the IPC on the ground that Will of Mukhtar Singh set up by appellant is forged and fabricated document. Learned Magistrate opined that as to whether the Will is genuine one or forged one was an issue before the District Court in the Probate petition where the Will had been filed. So under Section 195(1)(b)(i) and (ii) Cr.P.C., there is bar for taking cognizance of the offences under Sections 192, 193 etc., accordingly complaint was dismissed. Against the order, criminal revision was filed. The Appellate Court held that bar under Section195(1)(b)(i) and (ii) Cr.P.C. would not apply where forgery of a document was committed before the said document was produced in Court. The revision petition was accordingly, allowed and the matter was remanded to the court of Magistrate for proceeding in accordance with law. Order of first Appellate Court was challenged by filing a petition under Section 482 Cr.P.C. but the petition was dismissed following law laid down in Sachida Nand Singh. Feeling aggrieved, appeal was preferred that means there was 9 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 no finding of the Civil Court regarding genuineness of the Will but in the present case, there is finding of the Civil Court regarding genuineness of the Will that Will is forged and fabricated. Against finding of the Civil Court, appeal was preferred by the petitioners but the same was dismissed. So the authorities cited by the learned counsel for the petitioner are not helpful to opine that judgment of the Civil Court is not binding on the criminal court. Supreme Court in case Iqbal Singh (supra) opined that when there is a conflict between civil court and criminal court on same matter, then standard of proof required in both the proceedings is entirely different. Civil cases are decided on pre ponderous of evidence whereas in the criminal cases, burden of proof entirely lies on the prosecution to prove the case beyond reasonable doubt. Learned trial Court rightly scrutinised evidence on file to opine that offence punishable under Sections 467, 468, 471 and 193 read with Section 34 IPC was committed by the petitioners. At the time of argument, learned State counsel produced the custody certificates of the petitioners and same are taken on record. Custody certificates of the petitioners show that the petitioners were released on completion of their sentence after availing the government remission vide Punjab Govt. order dated 1.9.2004. For the reasons recorded above, I am of the opinion that evidence on file has been rightly scrutinised. There is no illegality in the impugned judgment. Impugned judgment could be set aside if the same is perverse, against law and evidence on file was misread. The revsional court is not to re-assess and revaluate the evidence on the file and court to interfere if any illegality was committed by the courts below. In the light of above discussion, both the revision petitions are dismissed. 10 Crl.Revision No.1728 of 2004 Crl.Revision No.1729 of 2004 [ Jora Singh ] Judge 27.04.2009 sd 11