1 REVN 358.09 Judg..sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL REVISION APPLICATION NO. 358 OF 2009 Mr. Ramchandra Chiman Bahiram & Ors. ... Applicants. V/s. The State of Maharashtra. ... Respondent. (Served through Public Prosecutor) Mr. Tushar Sonawane for the Applicants. Mr. S.A. Shaikh, APP for the State. CORAM : K.U. CHANDIWAL, J. DATED : 17th OCTOBER 2011. P.C. :- Heard learned Counsel for the Revision Applicant. Rule made returnable forthwith. 2. The Revision Applicant questions the Judgment of conviction in Regular Criminal Case No.6 of 1998 dated 12th August 2004, recorded by the learned Judicial Magistrate, First Class, Kalwan (Nasik), confirmed in Criminal Appeal No.112 of 2004 by the learned Ad-hoc Additional Sessions Judge dated 16.4.2009. The Revision Applicant No.1 Ramchandra, Revision Applicant No.2 Ramesh, Revision Applicant No.3 Sukdeo, 2 REVN 358.09 Judg..sxw Revision Applicant No.4 Amruta, Revision Applicant No.5 Bhika, Revision Applicant No.6 Ravaji were convicted for an offence punishable under Section 465 r/w. Sec. 34 of I.P.C. and Section 468 r/w. Sec. 34 of I.P.C. and directed to undergo R.I. for one year and to pay fine of Rs.500/- (Rupees Five Hundred) in default, S.I. for three months. The Accused/Applicant No.1 Ramchandra was also convicted for an offence punishable under Section 471 r/w. 34 of I.P.C. and directed to suffer R.I. for one year and to pay fine of Rs.500/-, in default to suffer S.I. for three months. These convictions are questions by the Revision Applicants. 3. Facts : Complainant Kalibai was owner and in possession of land bearing Gat No.148 admeasuring 2 H 57 R situate at Village Insi, Taluka – Kalwan, District – Nasik. Applicant No.1 Ramchandra allegedly colluded with other Applicants, went to the Office of Sub-Registrar, Kalwan, impersonated Kalibai by putting another lady in her place and a Sale Deed of the said land was got executed on 19.4.1997 in his favour by Ramchandra. The other Applicants signed the Sale Deed as attesting witnesses. She presented complaint before the learned J.M.F.C., investigation in terms of Section 3 REVN 358.09 Judg..sxw 156(3) of Cr.P.C. was directed. Report (Exhibit 3) was presented. In order to establish guilt of the Revision Applicants, the prosecution has examined PW-1 Kalibai, the Complainant, PW-2 Anant Patil, Sub-Registrar of Kalwan, who was present at the time of execution of Sale Deed bearing No.410 of 1997 dated 22.04.1997. Kalibai asserts, she can not read and write. After death of her husband, she has handed over landed property to Ramchandra - Accused No.1 for cultivation on batai basis of half share out of achieved yield. She asserts, on her giving communication to Ramchandra, to get back the field, the Accused No.1 by impersonation got the sale deed executed in his favour behind her back attested by Accused Nos.2 to 6 as attesting witnesses. She repeated, she did not put thumb impression nor signed the said Sale Deed nor she has received sale consideration. She has tendered photostat copy of the Sale Deed. She initially denied any knowledge of acquiescence to Accused Nos.2 to 6. She accepted, has also initiated civil proceedings against the Accused No.1. 4 REVN 358.09 Judg..sxw In the cross-examination, she has accepted her acquiescence to all the Accused. Her daughter Guntabai has also initiated civil proceedings after the execution of Sale Deed claiming rights in the property. She was suggested, on the date of Sale Deed dated 19.4.1997, she herself attended the Office of Sub-Registrar and on receiving full sale consideration put her thumb impression on the Sale Deed and it was executed by her. She was suggested in order to extract more money from Accused No.1, she has filed Civil Suits and to influence and create pressure, filed the complaint. 4. The sub-Registrar – Anant D. Patil, PW-2 naturally could not identify either Accused No.1 or Kalibai, as based on the record, he asserted that the said Sale Deed has been executed by Kalibai in favour of Accused No.1. Sub-Registrar is not supposed to be acquainted every person to whom the document is returned. The original Sale Deed would have been returned to the person who had with him the receipt. On perusal of the record, he found that the Sale Deed bearing No. 410 was taken away by Accused No.1 on 17.5.1997 by obtaining thumb impression in the prescribed register. He had no personal knowledge about the transaction as based on the 5 REVN 358.09 Judg..sxw record, he has deposed. He accepts, the Sub-Registrar is not supposed to be well acquainted personally with everybody coming and attending Registrar’s Office for registration of the Sale Deed. 5. To reiterate, these two witnesses made the learned Judge to believe the theory of impersonation, cheating, forgery. It is pertinent, original Sale Deed was not before the Court though applications was made by the Complainant to this effect. It was incumbent upon prosecution to have verified through experts by scientific ways, the thumb impression appearing on the Sale Deed and thumb impression of the Complainant. However, prosecution did not exercise such basic principle of leading evidence. The learned Judge erroneously believed photostat copy of the Sale Deed, inspite of the fact it was not exhibited. The observation of the learned Judge to the extent of all the accused committing forgery and fabricating the Sale Deed is again illusory out of context and evidence. He says, “PW-1 Kalibai is a rustic, helpless tribal lady and hence, it was Accused No.1 Ramchandra must be the author thereof. Knowing full well, the said bogus Sale Deed, he succeeds in certifying the Mutation Entry bearing No.184 on 26.7.1997”. 6 REVN 358.09 Judg..sxw Indeed getting mutation entry, would not impress to infer falsity on the part of Accused No.1 Ramchandra. However, learned Judge placed reliance to this fact to consider that it was obliterating the record. The observation of the learned Judge in paragraph 17 is as under :- “17. Taking into consideration all these facets I certainly find is that, all accused persons commit forgery by fabricating the Sale Deed bearing No.410/1997 dated 22.4.1997. The said forgery appears to have been committed for the purpose of cheating to PW No.1 Kalibai, a rustic, helpless tribal lady. Accused No.1 Ramchandra must be the author thereof. Knowing full well, the said bogus Sale Deed, he succeeds in certifying Mutation Entry bearing No.184 on 26.7.1997. Thus, Accused No.1 Ramchandra must be fraudulent or dishonest in using of said Sale Deed as genuine. He must be having knowledge, reasonable belief on the part of the person during the document that it is forged one. Considering weight, value and probability one thing is thus clear that, Accused No.1 – Ramchandra intends to grab the suit property anyhow with dishonest intention and fradulent intention. Meeting of mind with the remaining Accused Nos.2 to 6 Sale Deed bearing No. 410/1997 dated 22.4.1997 must have been executed. The constructive liability does not allow them to escape from the legal clutches. Available material thus 7 REVN 358.09 Judg..sxw concretely points out that, all accused persons must have committed the forgery. Thus, cogent, natural and satisfactory evidence is brought on record. The Complainant/Prosecution thus, succeeds in bringing all accused guilty home. I, therefore, hereby stop to hear all accused persons on the point of not only punishment but also nemesis.” “Thus, the Accused No.1 Ramchandra must be fraudulent or dishonour in using of the said Sale Deed. He must be having knowledge, reasonable plea on the part of the person through the document that it is forged one. Considering weight, value and probability, one thing is clear that Accused No.1 Ramchandra intends to grab suit property anyhow with fraudulent intention.” It was pointed by the learned Counsel for the Revision Applicant that the Civil proceeding being R.C.S. No.68 of 1997 and R.C.S.No.100 of 2000 were indeed attended to and decided by the same Judge on 3rd December 2003 and naturally, there was prejudice. This may be correct. 6. The observation of the learned Judge about the Accused Nos. 2 to 6 had the meeting of the mind with Accused No.1 in 8 REVN 358.09 Judg..sxw getting the Sale Deed is again contrary to the record. There is no evidence or any text of such meeting of mind between the accused/Applicant. The requirement of forgery or a false documents needs following aspects to be proved (a) such person made or executed the document claiming to be someone else, (b) he entered or tampered with the document, (c) he obtained a document by practicing deception. In first category of false document, it is not sufficient that the document has been executed dishonestly or fraudulently. It is to be established that the document should have been made with the intention of causing it to be believed that such document was executed by a person. 7. The Sale Deed purportedly executed by the Complainant PW-1 Kalibai is not established to be not executed by her for want of originals before the Court. Secondly, photostat copy was not exhibited. It could not be looked as a trump card. Thirdly, there is nothing to illustrate barring her statement that she did not attend the Office of sub-Registrar. 8. The Official record maintained by the Office of Sub- Registrar has a presumptive value of execution of document, 9 REVN 358.09 Judg..sxw unless otherwise is proved. To repeat, there is no otherwise such proof to believe the prosecution of execution of Sale Deed by impersonation. 9. The Supreme Court in Mohd. Ibrahim V/s. State of Bihar (2009) 8 SCC 751 in paragraph 25 has discussed the term ‘fraud’ to mean that reference to a party to a contract. It has also also referred to the Judgment of Dr. Vimla V/s. Delhi Administration (1963) AIR S.C. 1572 wherein the Supreme Court has observed as under :- “ The expression defraud involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases whether there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.” 10 REVN 358.09 Judg..sxw 10. The learned J.M.F.C. did not venture to the basic aspect of want of evidence of any other lady in place of Kalibai having brought before the Sub-Registrar at Kalwan of such lady having executed said Sale Deed. The learned Judge certainly committed error on the basis of mere hypothesis and presumptive approach associated with surmises and wave of sympathy for Kalibai, without there being actual evidence. The principle proof beyond reasonable doubt should have been paid its legitimate weightage by the learned Judge. 11. The ingredients of Section 468 and 471 of I.P.C. are absolutely missing in the transaction. Section 468 speaks about forgery for the purpose of cheating which contemplate that (a) the document is a forgery, (b) the accused forged the document, (c) the accused desired to use forged document for the purpose of cheating. Section 471 contemplates, using as a forged document is the basic requirement of branding, the Sale Deed in question to be a forged document itself being wanting, the learned Judge could not have convicted the Accused/Applicants. Consequently, the conviction recorded on 12.8.2004 and confirmed by the learned Ad-hoc Additional Sessions Judge – I, Nasik on 16.4.2009 calls for interference 11 REVN 358.09 Judg..sxw and as even the learned Ad-hoc District Judge did not apply mind to the legal position. 12. Criminal Revision Application allowed. Rule Discharged. The bail bond of the Accused/Applicant is terminated. Fine amount if any, deposited, be reimbursed to the Revision Applicants. (K.U. CHANDIWAL,J.)