CRLA/1376/2000 of RAM DAYAL SINGH Vs MAKAN SINGH @ KULDEEP and OTHERS on 31 December 2012

1. Makan Singh @ Kuldeep

S/o Murari Lal

R/o Village Ghandali, Post Office Bagwan District Tehri Garhwal

2. Mohan Singh S/o Darvan Singh

R/o Village Aaithana, Patti Katulsuen

PS. Srinagar, District Pauri Garhwal

3. Lokmani Mishra, S/o Chintamani Mishra R/o Dobhal Dhara, Aaithana Katulsuen, District Pauri Garhwal

4. State of Uttar Pradesh (now State of Uttarakhand)

..…….Opposite Parties

Mr. G.S. Negi, Advocate, present for the complainant/appellant. Mr. M.A. Khan, A.G.A, with Ms. Sangeeta Miyan, Brief Holder, present for the State.

Mr. Rakesh Thapliyal, Advocate, present for the respondent no. 2 and 3.

Honʹble Prafulla C. Pant, J.

This appeal against acquittal is directed against the judgment and order dated 29.05.2000, passed by Judicial Magistrate, I Class, Srinagar, District Pauri Garhwal, in Criminal Complaint Case No. 281 of 1998, whereby said court has acquitted accused/ respondent no. 2 Mohan Singh and respondent no. 3 Lokmani from the charge of offences punishable under section 120B/419 and 465 IPC.

2. Heard learned counsel for the parties, and perused the lower court record.

3. Prosecution story, in brief, is that complainant Ram Dayal Singh, resident of Village Aithana, Patti Katulsuen, District Pauri Garhwal, has his landed property bearing Khatoni Khata No. 71/ new no. 154 measuring 128 Nalis as a co‐sharer in village Dhang of the same Patti. The another co‐sharer was one Bakhtawar Singh, son of Kali Singh of village Aithana. It is alleged by the complainant in the criminal complaint filed in 1994 that Bakhtawar Singh had died thirty years before. It is further alleged that accused no. 1 Makan Singh @ Kuldeep (absconder) entered into a conspiracy with accused no. 2 Mohan Singh (witness of the sale deed) and accused no. 3 Lokmani Mishra, and got executed a registered sale deed on 28.12.1991, whereby the land of the aforesaid plots measuring 2 Nalis and 9 Muthhiwas shown sold by Bakhtawar Singh to one Kritmani Mishra for an amount of ` 51,100/‐. It is alleged that Makan Singh @ Kuldeep projected himself asBakhtawar Singh (a dead person), and accused Mohan Singh identified him as Bakhtawar Singh at the time of execution of the registered sale deed. On the aforesaid complaint the Magistrate recorded statement of the complainant under section 200 Cr.P.C. and that of witnesses Bhagwati Prasad Ghildiyal under section 202 Cr.P.C., and summoned the accused Makan Singh @ Kuldeep and Mohan Singh to face the trial in respect of offence punishable under section 465 IPC on 29.06.1996. Thereafter, on 21.10.1997 exercising powers under section 319 Cr.P.C., accused/ respondent no. 3 Lokmani Mishra was also summoned to face the trial in respect of offences punishable under section 419 and 465 IPC.

4. After recording evidence under section 244 Cr.P.C. of P.W.1 Ram Dayal Singh and P.W.2 Bhagwati Prasad Ghildiyal, the trial court heard the parties, and framed charge of offences punishable under section 120B, 419 and 465 IPC, against all the three accused namely Makan Singh @ Kuldeep, Mohan Singh and Lokmani Mishra who pleaded not

guilty and claimed to be tried. Thereafter P.W.1 Ram Dayal Singh and P.W.2 Bhagwati Prasad Ghildiyal were further cross‐examined under section 246 Cr.P.C. Also P.W.3 Rajesh @ Ramesh, and P.W.4 Dhani Lal (an employee of office of Sub‐Registrar, Pauri Garhwal) were also examined and cross‐examined under section 246 Cr.P.C. Meanwhile, accused Makan Singh @ Kuldeep appears to haveabsconded during trial and his case was separated after recording evidence under section 299 Cr.P.C.Oral and documentary evidence was put to the rest of the two accused under section 313 Cr.P.C. in reply to which they pleaded that they have been falsely implicated due to enmity. (But accused Mohan Singh in his statement before the stage of 244 Cr.P.C admitted that he did made signatures in the sale deed). No evidence in defence was adduced. The trial court after hearing the parties found that it cannot be said that charge of offences punishable under section 419 read with section 120B IPC and 465 IPC are proved beyond reasonable doubt against accused Mohan Singh and Lokmani Mishra, and acquitted them giving benefit of reasonable doubt. Aggrieved by said judgment and order dated 29.05.2000, passed by Judicial Magistrate, I Class, Srinagar, District Pauri Garhwal, the complainant challenged the same by filing revision before Allahabad High Court which was received by this Court under section 35 of U.P. Reorganization Act, 2000. However, since appeal against acquittal in a complaint case was maintainable under section 378(4) of Cr.P.C., the revision was treated as an appeal under said section by this Court after giving notices to the accused/respondents no. 1 to 3. Leave was granted and lower court record was summoned.

5. It is not disputed between the parties that land of Khata Khatoni no. 71/new no. 154 measuring 128 Nali situated in village Dhang, Patti Katulsuen was recorded in the name of Bakhtawar Singh who was co‐sharer of the land. It is also not disputed that complainant Ram Dayal Singh was another co‐sharer of said land. On perusal of the entire evidence of record, this Court finds that even this fact is notdenied by the accused that Bakhtawar Singh had on died long before execution of the sale deed28.12.1991. The only question is whether accused Makan Singh @ Kuldeep (absconder) impersonated for Bakhtawar Singh before Sub‐Registrar in execution of land of said dead person, and whether accused/respondent no. 2 Mohan Singh son of Darvan Singh signed said sale deed as witness identifying the seller.

6. From the statement of P.W.1 Ram Dayal Singh, P.W.2 Bhagwati Prasad Ghildiyal, P.W.3 Rajesh @ Ramesh, and P.W.4 Dhani Lal it is established that sale deed was executed by accused Makan Singh @ Kuldeep in the name of Bakhtawar Singh (a dead person) on 28.12.1991, and accused Mohan Singh identified Makan Singh @ Kuldeep as Bakhtawar Singh at the time of execution of sale deed. It is relevant to mention here that purchaser Kritmani Mishra died before he could be examined and P.W.3 Rajesh @ Ramesh (S/o Kritmani Mishra) was examined who admitted that his father was approached by the accused Makan Singh @ Kuldeep to purchase the land and the offer was agreed for the consideration agreed between the parties. This witness (P.W.3) has further stated that later his father came to know that sale deed was fraudulently executed. P.W.4 Dhani Lal (an employee with the office of Sub Registrar, Pauri Garhwal) produced the record of the office of the Sub‐Registrar relating to sale deed dated 28.12.1991 and proved the certified copy filed by the complainant.

7. As far as role of accused/respondent no. 3 Lokmani Mishra is concerned, it is not proved beyond reasonable doubt if he had really conspired with accused Makan Singh @ Kuldeep in getting executed sale deed in the name of a dead person (Bakhtawar Singh). But it is established from the documentary as well as oral evidence on record that accused Makan Singh @ Kuldeep who impersonated Bakhtawar Singh (a dead person) did conspire with accused Mohan Singh in execution of sale deed of his land. The signatures of accused/respondent Mohan Singh as witness identifying accused Makan Singh @ Kuldeep as Bakhtawar Singh, as seller are fully proved from the statements of the witnesses got examined on behalf of the complainant in his statement at the stage of 244 Cr.P.C. The accused Mohan Singh has not denied his signatures. Only plea that he was an illiterate person, was accepted by the trial court and acquitted him treating that charge is not proved beyond reasonable doubt. But this approach on the part of the trial court is erroneous in law. Accused Mohan Singh has signed not only on the charge but also on his statement under section 313 Cr.P.C., and appears to be an literate person. Assuming for a moment that he is an illiterate, even then on the basis of the evidence on record it cannot be said that he acted bona fide and had no knowledge that the land of Bakhtawar Singh was being sold by Makan Singh @ Kuldeep. That being so, this Court is of the view that no other opinion can be formed in this case except that the accused Mohan Singh did conspire with accused Makan Singh @ Kuldeep (absconder) who executed a sale deed fraudulently in the name of Bakhtawar Singh (a dead person) on 28.12.1991 in committing forgery (punishable under section 465 IPC) and in cheating (punishable under section 419 IPC).

8. For the reasons as discussed above, this appeal deserves to be allowed as against accused/ respondent no. 2 Mohan Singh. Accordingly the appeal as against accused/respondent no. 2 Mohan Singh is allowed. The impugned judgment and order dated 29.05.2000, passed by Judicial Magistrate, I Class, Srinagar, District Pauri Garhwal, in Criminal Complaint Case No. 281 of 1998, is hereby set aside to the extent of acquittal recorded in respect of accused Mohan Singh son of Darvan Singh. Said accused/respondent no. 2 is convicted under section 465 and 419/120B IPC. After hearing on sentence, and considering the submissions of learned counsel for the parties, this Court is of the view that on each count he is liable to be punished to rigorous imprisonment for a period of one year and he is sentenced accordingly. Both the sentences shall run concurrently. As far as acquittal of respondent no. 3 Lokmani Mishra is concerned, the same is not interfered with. The trial court record be sent back to make accused/respondent no. 2 Mohan Singh serve out the sentence awarded by this Court.

Parul

(Prafulla C. Pant, J.) 31.12.2012