State vs Gian Chand Jain & Ors.
2009 Latest Caselaw 5167 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 20th November, 2009
                         Judgment Delivered on: 14th December, 2009

+                          CRL.A.902/2008

        STATE                                           ...Appellant
                     Through:   Mr.Manoj Ohri, APP.
                                Mr.R.N.Mittal Sr. Advocate with
                                Mr.Puneet Mittal and Mr. Ujjawal Jha,
                                Advocates for the complainant.

                                Versus

        GIAN CHAN JAIN & ORS.                        ...Respondents
                  Through:    Mr. D.K. Thakur, Advocate for
                              respondent nos.1&3.


        CORAM:
        HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the
        Digest?                                       Yes


INDERMEET KAUR, J.

1. On 28.3.2006 learned MM had acquitted the accused persons

i.e. G.C.Jain and Arun Yadav of the charges levelled against them

under Section 120-B/467/468/471 of the IPC as also for the offence

under Sections 380 & 427 of the IPC. Four persons had been

charge-sheeted; Suresh could not be arrested; he was declared a

proclaimed offender; Gajanand Sharma was appearing in the court

for some time but thereafter he chose not to appear; he was also

declared a proclaimed offender on 27.9.2003.

2. Incident is dated 23.3.1993. The FIR was registered on the

complaint of SI A.C.Dwivedi, PS Defence Colony. FIR had initially

been registered under Section 427/380 of the IPC. Thereafter

Section 467/468 and 471 of the IPC read with Section 120-B of the

IPC was added.

3. On 10.7.1995, the investigation was transferred from the local

police to the crime branch. Charge-sheet was filed on 9.4.1996.

4. Briefly stated the facts of the case are that the complaint Shiv

Shankar Sharma was in legal possession in his capacity as a tenant,

of Shop No.39-A, NDSE, Part II, New Delhi. He was running a

kerosene depot in the said premises. On 22.3.1993 in routine he

closed his shop and returned to his home. On the following morning

i.e. on 23.3.1993 at 10 AM when he reached his shop he saw it had

been demolished, 14 drums of kerosene as also cash of Rs.1,000/-

and certain other documents were found missing. His goods had

been removed in truck no. DEG 5756; on 23.3.1996, the truck had

again come to the spot; on enquiry by the complainant the driver of

the truck informed him that he had been asked to remove goods at

the instance of G.C.Jain.

5. In the course of the investigation G.C.Jain produced one

affidavit Ex.PW-1/B dated 22.3.1993 purported to have been

executed by the complainant Shiv Shankar Gupta wherein the

complainant had agreed to voluntarily surrender this shop in favour

of G.C.Jain. This affidavit also bore the signatures of Arun Yadav

and Gajanand Sharma.

6. Case of the prosecution is that this was a forged affidavit and

had been used by the respondents and their accomplices to usurp

this premises of the complainant. Evidence had been gathered to

the effect that this affidavit was in fact not signed by the

complainant Shiv Shankar and this has been established by the

report of the CFSL.

7. Before the Trial Court 20 witnesses were examined; the trial

court however chose to disbelieve their versions and giving benefit

of doubt to the respondents i.e. G.C.Jain and Arun Yadav, both had

stood acquitted.

8. The trial court had held that the defence of the accused had

all along been that he had handed over the affidavit dated

22.3.1993 to H.C. Bhag Singh for which he had been issued a valid

receipt but investigation in this direction had not been carried out

by the prosecution and prosecution had failed to establish beyond

all reasonable doubt that the affidavit Ex.PW-1/B was the same

affidavit which had been handed over by the accused to H.C.Bhag

Singh; in the absence of which it could not be said that the

respondents were in any way responsible for the alleged forgery on

the said affidavit. The prosecution not having been able to discharge

this onus that Ex.PW-1/B was the same affidavit which had been

given by the accused, no evidence also having been led on theft or

mischief causing damage to property; benefit of doubt had accrued

in their favour entitling them to an acquittal. They had accordingly

been acquitted by the impugned order dated 28.3.2006.

9. It is this order which has become the subject matter of this

appeal. Respondents are the accused G.C.jain and Arun Yadav.

10. This appeal has been preferred by the State; the complainant

is Shiv Shankar Sharma.

11. Powers of the court in an appeal against an order of acquittal

are limited. In Ghurey Lal vs. State of U.P. 2008 4 CCC SC 49

(judgment relied upon by the counsel for the non-applicant) it has

been held that the principles to overrule a judgment of acquittal by

a trial court should be strictly followed; the said principles over the

years have been crystallised and the rules have to be strictly

adhered to. The following rules had been enunciated in this case:-

"1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons: for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approached of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached- one that leads to acquittal, the other to conviction- the High Courts/appellate courts must rule in favour of the accused."

12. The law as enunciated above is an undisputed proposition. It

is on this touch stone that the judgment of the trial court has to be

appreciated.

13. Complainant Shiv Shankar Gupta has been examined as PW-1.

He has deposed that on 22.3.1993 at 7.30 PM he had closed his

shop leaving behind about Rs.1000/- in cash as also 14 drums

containing 500 ltrs. of kerosene oil some of which were empty; on

the following morning at about 10 AM he reached the shop and

found it demolished. The drums were missing as also the cash. On

enquiry he came to know that the articles were taken away in one

truck no. DEG 5756. He further deposed that in his presence the

truck again came back there; he enquired from the truck driver; he

was told by the driver that the articles were removed on the

direction of G.C.Jain. Arun Yadav and Suresh were also present in

the truck at that time. Police was informed. His statement Ex.PW-

1/A was recorded. He has admitted that his signatures were

obtained on three blank papers besides his specimen signatures

which was taken on three sheets Ex.PW-1/F-1 to F-3. PW-1 further

deposed that in the course of the investigation he was informed that

G.C.Jain had produced one affidavit purported to be an agreement

between G.C.Jain and himself i.e. PW-1. PW-1 has denied his

signatures at point A and B on the said affidavit Ex.PW-1/B. He has

categorically stated that he has not signed Ex.PW-1/B.

14. In his cross examination he has stated that the police had

come to the spot at about 10.45 AM and remained there for one

hour; police also made enquiry from Sayed Ali and Shehzad Ali and

others. The truck remained there for a few minutes and it was then

driven away from the spot in spite of the efforts he could not chase

it; he deposed that he cannot say when Ex.PW-1/B was shown to

him but it must have been somewhere around 24/25.3.1993; it was

in the police station. He denied the suggestion that document which

had been shown to him is not Ex.PW-1/B but was some other

affidavit. He is a tenant in the shop and had been paying rent to

Satya Devi who was his landlady. He further denied the suggestion

that Arun Yadav has been falsely implicated in this case due to an

earlier dispute which he had with him over the collection of

kerosene oil. Police had admittedly reached the spot at 10.45 AM

on 23.3.1993 and remained there for about one hour. His statement

Ex.PW-1/A was recorded.

15. Owner of the truck Pradeep Kumar had been examined as

PW-2. As per his version on oath he was the registered owner of

truck No.DEG -5756 and on the day of incident driver Jagdish was

plying the said truck. Vide Ex.PW-2/A PW-2 had informed the

Investigating Officer that Jagdish had gone back to his village about

3-4 months ago and his whereabouts are not known but as and

when his address is traced, same shall be informed. The truck had

been taken into possession by SI Mohan Lal PW-11 on 8.11.1994

vide memo Ex.PW-2/B.

16. In the course of the investigation Shehzad was also examined

by the prosecution but he could not be produced as witness as he

had expired. D.K.jain was the Notary Public who had allegedly

attested Ex.PW-1/B. Gajraj Singh PW-4 had reached the spot to take

photographs of the broken shop after the demolition had been

effected; said photographs are Ex.PW-4/A & B. Rakesh Kumar PW-5

and Rajinder PW-6 had in the early hours of 23.3.1993 noted that

the respondent G.C.Jain standing outside the shop of PW-1 and

where the demolition of the shop was going on; on inquiry both the

said PWs had been informed that matter has been compromised

and settled with PW-1 and G.C.Jain had purchased this shop from

PW-1.

17. Investigation of this case had been marked to Inspector

Avnesh Divedi Pw-15. He had recorded the statement of the

complainant Ex.PW-1/A; the rukka had been sent at 8.10 PM for the

registration of the FIR. Site plan Ex.PW-15/B had been prepared at

the pointing out of the complainant. PW-15 has deposed that the

accused had produced the photocopy of an affidavit signed by the

complainant which he had seized vide memo Ex.PW-15/C; original of

that affidavit Ex.PW-1/B had been handed over to him by G.C.Jain

which was seized vide memo Ex. PW-1/C. PW-15 further deposed

that G.C.jain had refused to sign on either of the two seizure

memos.

18. The said seizure memos are Ex.PW-1/C and Ex.PW-15/C. Vide

Ex.PW-1/C original affidavit dated 22.3.1993 i.e. Ex.PW-1/B had been

seized. Ex.PW-1/C categorically recites that the accused G.C.Jain

had refused to sign this document i.e. seizure memo. This

document had been attested by H.C.Charan Singh and the

complainant.

19. Ex.PW-1/B i.e. an affidavit purported to have been signed by

Shiv Shanker Gupta at point A and B. Version of the accused is that

as per this document the complainant had voluntarily surrendered

the occupation of the room i.e. the premises no. P-39, New Delhi

South Extension, Part-II; pursuant to a negotiated settlement he had

vacated the premises after due application of mind without any fear

and force and he had a received a sum of Rs.20,000/- in full and

final settlement towards the cost of the construction. This affidavit

had been attested by the Notary Public D.K.Jain PW-3 and has been

witnessed by G.K.Saini and Arun Yadav. G.K.Sharma and Arun

Yadav are the two co-accused along with G.C.Jain of whom

G.K.Sharma was a proclaimed offender. Arun Yadav is second

respondent before this Court.

20. The Notary Public i.e. D.K.Jain had come into witness box as

PW-3; he had taken shifting stands. On oath he had stated that he

had attested the affidavit Ex.PW-1/B. In his cross-examination he

had stated that the signature had appeared on this affidavit prior to

his attestation. He was again re-summoned in the witness box

pursuant to an order on an application under Section 311 of the

Cr.P.C. wherein he admitted that Ex.PW-16/A is a letter written in his

hand writing to the Investigating Officer of the Crime Branch. In this

letter, it is stated that affidavit Ex.PW-1/B had not been attested by

him.

21. This witness had taken different stand at different points of

time. However, what can be gathered is that Ex.PW-1/B was an

affidavit which had been brought to him for the purpose of

attestation but the signature on the said affidavit had already been

appended prior to his attestation; this is his first version. In his

second version i.e. in Ex.PW-16/A he has written that Ex.PW-1/B has

not been attested by him, he has also corroborated this on oath.

Both these depositions establish that PW3 was not in a position to

depose whether Ex.PW-1/B was signed by PW-1 or not; even

otherwise little reliance can be placed upon such a confused

witness.

22. The senior scientific officer V.K.Khanna who had examined

specimen and questioned document including specimen handwriting

of the complaint has come into witness box as PW-7. Vide his report

Ex.PW-7/A dated 27.7.1993 he had opined that the questioned

signatures of PW-1 at point Q1 and Q2, in comparison with the

specimen signatures sent to him do not appear to be of the same

person. In the course of the trial specimen signatures of PW-1 and

the co-accused Arun Yadav had again been taken. On 2.8.1995, SI

Naseeb Singh PW-10 had vide Ex.PW-10/A-1 to A-10 taken the

specimen handwriting and specimen signatures of Arun Yadav. On

3.11.1995 Jaswinder Singh PW-8 had taken specimen handwriting

and specimen signatures of PW-1 on vide Ex.PW-8/A-1 to A-5. These

handwriting had become the subject matter of subsequent reports

of the CFSL Ex.PW-17/A and Ex.PW-17/B dated 31.1.1997 which had

been proved in the testimony of PW-17 Harsh Vardhan. Vide these

reports no conclusive opinion could be formed on Q-1 & Q-2 i.e. the

questioned document relating to PW-1; it had however opined that

Q-3 on Ex.PW-1/B is the handwriting of Arun Yadav.

23. Bhagwan Singh DW-6 had also examined the specimen and

the questioned writing of the complainant PW-1. As per his report

Ex.DW-6/13 dated 27.5.2005 the signatures Q-1 and Q-2 on Ex.PW-

1/B are of the complainant Shiv Shanker Gupta; this witness had

done diploma course in the examination of documents from the

Institute of Criminology; he has in his cross-examination admitted

that he has not seen the report of the CFSL Ex.PW-7/A and the

subsequent report Ex.PW-17/A and the reason on which the said

opinions had been based. This witness is a private person. No

document in support of his claim that he had passed this diploma

course has been exhibited in his testimony. He is not in the

category of persons who are described under Section 293 of the

Cr.P.C. which are those categories of scientist experts whose reports

are per se admissible. He denied the suggestion that he is deposing

falsely at the instance of the accused.

24. DW-6 had been brought into the witness box by the accused;

there is no dispute about the proposition that the witnesses of the

defence also have to be given an equal weightage as that of the

prosecution; yet in this case DW-6 has failed to place on record even

a single document that he had done a diploma course in the

examination of document; his admission that he has not seen the

earlier expert reports Ex.PW-7/A and Ex.PW-17/A also throw doubt

on the veracity of his report as an unbiased and unprejudiced

person would have positively examined all the pros and cons

including the earlier scientific reports on the basis of which the

earlier government experts had been their findings in Ex.PW-7/A and

Ex.PW-17/A; his reasoning is neither cogent nor clear; in his cross-

examination he has admitted that he had given his conclusion on

the alphabetical study of the documents; the individual writing

characteristics had not been considered. In this scenario little

reliance can be placed upon Ex.DW-6/13.

25. Learned counsel for the non-applicants had pointed out that

the specimen signatures of the complainant had been taken during

the course of the investigation without prior permission of the Court

which had become the basis of the report Ex.PW-7/A and in view of

the judgment in Rakesh Kumar vs. State 2004(2) CRJ 452 the

signatures taken of the accused by the police during the

investigation without prior permission of the Court cannot be used in

the trial. This judgment had relied upon a judgment of the Supreme

Court in Sukhvinder Singh & Ors. vs. State of Punjab 1994(5) SCC

152. The said judgments were both related to the specimen

handwriting taken of an accused during the course of investigation

without prior permission of the Court and their impact on the rights

of an accused; in this case the specimen handwritings which are

under challenge are not that of an accused but that of the

complainant.

26. G.C.Jain had come into the witness box as DW-4. His defence

all along is that Ex.PW-1/B is a sham document; it is not the affidavit

which he had given to H.C. Bhag Singh; yet at the same time he has

taken pains to prove this document to be correct by producing DW-6

who has purportedly testified that Q-1 and Q-2 on Ex.PW-1/B are

signatures of PW-1; this itself reflects the contrary and shifting

stands of the accused.

27. Admittedly up to 7.30 PM of 22.3.1993 the disputed shop was

in the legal possession of the complainant Shiv Shanker Gupta. This

has also been admitted by the accused G.C.Jain in his statement

recorded under Section 313 of the Cr.P.C. He had also come into the

witness box as DW-4. His version is that at 7.30 PM on 22.3.19093

an affidavit had been handed over to him by the complainant

pursuant to a negotiated settlement arrived at between the parties

whereupon the sum of Rs.20,000/- had been received by the

complainant from the respondent G.C.Jain in full and final claim of

his construction cost and he had been handed over the peaceful and

vacant possession of the property to him. He has further deposed

that it was in the presence of his friend R.P. Singh and Baldev Raj

Chauhan that PW-1 had handed over the peaceful possession of the

disputed shop to him on 22.3.1993.

28. Baldev Singh Chauhan had come into witness box as DW-5; he

had corroborated this version of DW-4. DW-5 had stated that

pursuant to this settlement Shiv Shanker Gupta had received a sum

of money which were two packets of Rs.100/- notes each. In his

cross-examination he has admitted that he is known to G.C.Jain

since the last 15 years; he has further admitted that pursuant to this

payment of Rs.20,000/- paid by G.C.Jain to PW-1 no receipt had

been given by PW-1.

29. It is surprising and rather unbelievable that if the physical

possession of the property was being handed over by PW-1 to the

petitioner, no document to the said effect had been executed; no

handing over or taking over memo had been drawn; receipt of

Rs.20,000/- had also not been taken from PW-1 by G.C.Jain. This

defence has been set up as an afterthought, this is also clear from

the fact that no such defence has been put up in the cross-

examination effected on PW-1; or other witnesses of the

prosecution; this also did not find mention in the statement of the

accused under Section 313 of the Cr.P.C.

30. Further version of DW-4 shows that on 23.3.1993 when he was

accosted by certain bad elements making a further demand of Rs.2

lacs upon him he contacted his lawyer Rajender Singh and he

narrated the incident to him. Rajender Singh is a witness of the

prosecution and he has stepped into witness box as PW-6. He has

deposed that on 23.3.1993 while he was on a morning walk at

about 5.30-6.00 AM, on reaching at P-39 A, South Extension-II he

saw that G.C.jain and one Suresh were standing near the shop of

Shiv Shanker Gupta and 7/8 labourers were breaking the shop of

Shiv Shanker Gupta. On inquiry, it was told by G.C.Jain that Shiv

Shanker Gupta had compromised the matter with him. PW-6 has

further deposed that G.C.Jain had come to his house at 8.00 AM and

requested him to draft a complaint; thereafter he proceeded to his

Court at Tis Hazari as he is an advocate by profession. Later on he

came to know that G.C.jain has forcibly taken the shop of Shiv

Shanker Gupta.

31. The timing in this version of DW-4 and PW-6 becomes

relevant. DW-4 has stated that it was in the afternoon that he

received threats from the complainant and he contacted his lawyer

at about 10.00 AM. This version is contrary to the version of PW-6

who has stated that DW-4 had contacted him at 8.00AM; further he

being an advocate had proceeded to Tis Hazari Courts in the

morning and could not have possibly met DW-4 at 10.00 AM.

32. Rakesh Kumar PW-5 a neighbour in the vicinity has deposed

that at about 6.15 AM in the morning when he was going to

purchase milk, he saw that Mr.Jain standing near the shop of PW-1

and the shop was demolished. This version establishes that the

demolition work must have been started in the very early morning

hours i.e. probably about 4.00 AM and when PW-5 crossed the shop

at 6.15 PM it had already stood demolished and 7-8 labourers were

present there; on inquiry he had been told that the shop had been

purchased by G.C.Jain from Shiv Shanker Gupta.

33. DW-4 has further deposed that he had been assaulted and

beaten by the complainant. He had lodged a complaint with PW-15

who sent him for medical examination and his MLC was prepared.

No such MLC is forthcoming. Rajbir Singh DW-7 the record clerk of

the AIIMS had produced a photocopy of an MLC Ex.DW-7/A

purported to be of the petitioner but the name of the patient could

not be revealed as it did not contain any name; date of admission is

also blank.

34. Further, as per DW-4 at 1.00 PM H.C. Bhag Singh had come

to his home to collect the affidavit. This version of DW-4 that he

had handed over the original affidavit to H.C.Bhag Singh appears to

be wholly inconsistent and improbable. PW-15 in his cross-

examination has categorically denied that he had sent H.C. Bhag

Singh to the house of the respondent to collect the original affidavit;

he could not even say whether H.C.Bhag Singh was posted at police

station Defence Colony or not. H.C.Bhag Singh was admittedly not

a member of the investigating team; also not being posted at police

station Defence Colony, at that time, it is impossible to believe that

G.C.Jain would have been asked to handover the affidavit to

H.C.Bhag Singh; H.C.Bhag Singh could have been brought into the

witness box in defence but accused had deliberately omitted to do

so; this was for the reason that there is no such H.C.Bhag Singh in

the picture.

35. A fact specifically pleaded by the accused; it was incumbent

upon him to have proved it, in the absence of which it cannot be

said that any such affidavit had been handed over by him to

H.C.Bhag Singh. More over the respondent has stated that he had

been issued a receipt by H.C.Bhag Singh; where is that receipt? If

this receipt had been issued to the respondent he should have

produced it; It is also mysteriously missing.

36. In defence Pradeep DW-8 brother-in-law of G.C.Jain had come

into witness box and deposed that at about 12-12.30 noon in his

presence G.C.Jain had handed over one affidavit to a police official

Bhag Singh who has given him a receipt for the seizure of that

document; this witness being closely related to G.C.Jain being his

brother-in-law has deposed in favour of G.C.jain.

37. As already discussed supra, who is Bhag Singh? how had he

come into the picture? he is not a part of the investigating team;

why the receipt which had been given by H.C. Bhag Singh to the

respondent has not been produced? or why H.C. Bhag Singh has not

been brought into witness box? It was for the accused to explain all

these circumstances which he has failed to do so.

38. Section 105 of the Evidence Act is based on the rule ie

incumbit probatio qui dicit, non qui negat - the burden of proving a

fact rests on the party who substantially asserts the affirmative of

the issue and not upon the party who denies it; for a negative is

usually incapable of proof.

39. Conduct of the respondent G.C.jain become questionable.

Admittedly there was a long drawn out litigation qua this property

between PW-1 and GC Jain. G.C. Jain was not the owner of this

property. PW-1 has categorically stated that he was paying rent of

this shop to Ramanand. A Power of Attorney Ex.PW-9/B had been

produced by the accused which is dated 7.6.1988 whereby

Ramanand authorised the respondent G.C.Jain to deal with his

property i.e. the property bearing No.P-39, South Extension-II. This

document Ex.PW-9/B had been seized by SI Chetan Pal PW-9. The

document shows that it was executed on 7.6.1988. In the witness

box DW-4 has stated that he is the owner of the property and the

papers of the sale were prepared in his favour by Ramanand on

7.6.1988.

40. In this context it is relevant to state that the litigation between

the parties were various suits filed by PW-1 against the respondent

G.C.jain which were suits for perpetual and permanent injunction

restraining the respondent G.C.Jain from interfering with the

peaceful possession of his shop i.e. the disputed property bearing

No.P-39, South Extension-II. PW-1 had handed over the documents

relating to these suit proceedings which had been seized by the

Investigating Officer vide Ex.PW-1/C and Ex.PW-1/D and the

documents are Ex.PW-1/D-1 to D-7. These documents reflect the

acrimony of the contentious litigation pending between the parties.

Written statement filed by the respondent in these proceedings has

also been perused. These are all proceedings after 7.6.1988.

Nowhere in these pleadings the respondent has pleaded that he is

the owner or the authorised attorney holder of this property by

virtue of Ex.PW-9/B. Nowhere in these proceedings had this power

of attorney ever surfaced.

41. DW-4 in his cross-examination has also admitted this position.

It has come on record that in the year 1990 PW-1 had filed a suit

against G.C.jain for injunction. Pursuant to a joint statement

between the parties that G.C.Jain would not dispossess the

respondent, vide order dated 15.6.1990 in suit no. 195/90 the suit

had been disposed of. Thereafter in the year 1992 another suit had

been filed for injunction i.e. suit no. 272/92 by PW-1. Matter had

been compromised and pursuant to the undertaking given by

G.C.Jain that he would not interfere in the peaceful possession of the

complainant the suit had been disposed off vide order dated

21.9.1993. This order is dated 22.1.1993.

42. This shows that two months prior to this incident the parties

were still warring with one another and disputes over this property

were on; so much so that contentious litigation between the parties

was pending. DW-4 in his cross-examination has also admitted that

on 17.2.1993 i.e. about one month prior to this incident a complaint

had been lodged by PW-1 against him for an attempt to kidnap him.

In his cross-examination DW-4 has admitted that he was called in

the Dev Nagar Crime Branch regarding this complaint.

43. These facts clearly advance the version of the complainant

that the parties were daggers drawn; this dispute was over this

shop. So much so that a complaint for the alleged kidnapping of

PW-1 by the respondent had also been filed by him.

44. In Suit No.258/93 titled as Shiv Shanker Gupta vs. G.C.jain i.e.

a suit for perpetual injunction and declaration filed by PW-1 on

30.3.1993 the affidavit dated 22.3.1993 was the contentious issue;

this suit had been decided in favour of PW-1 on 2.4.2002 and the

legal understanding/affidavit dated 22.3.1993 had been declared

null and void. In these proceedings defendant had filed his written

statement but thereafter he chose to absent himself whereupon he

was proceeded ex parte.

45. It is in this background that the affidavit dated 22.3.1993 has

to be adjudged.

46. On this point learned counsel for the complainant drawing the

attention of this Court to the decree dated 2.4.2002 in Suit

No.358/93 (supra) has argued that this final finding of the Civil Court

on this affidavit dated 22.3.1993 is binding on the criminal Court.

Counsel for non-applicant has submitted that his defence has

always been that Ex.PW-1/B is not the same document which he had

handed over to H.C. Bhag Singh and as such the finding of the Civil

Court on this document could not have any binding effect on this

Court. This argument has little force in view of the discussion supra

on this point. Principle of res judicata applies to criminal

proceedings. It is different from the principle of autrefois acquit or

double jeopardy as embodied in Section 300 of Cr.P.C. Where an

issue of fact has been decided by a competent court and a finding

has been reached in favour of an accused, it would constitute a res

judicata against the prosecution, not as a bar to the trial and

conviction of the accused for a different or distinct offence, but as

precluding the reception of evidence to disrturb the finding of fact in

issue, provided, however, (1) that the parties are the same (2) the

fact in issue proved or not is identical with what is sought to be

reagitated in subsequent trial. See AIR 1956 SC 415 Pritam Singh vs.

State.

47. Arun Yadav is the attesting witness of Ex.PW-1/B. He has

admitted his signature at point A-4 on the said document. He has

also come into witness box as DW-1. His version on oath is that his

signatures on the said document were taken under force and

coercion; admittedly he has not made any complaint against this

force and coercion exercised upon him Ex.PW-17/A and Ex.PW-17/B

had also opined that Ex.PW-1/B is signed by Arun Yadav. Presence

of Arun Yadav was also duly identified by PW-1 as the person who

was present in the truck at the time when the truck driver has come

to collect the Malba from his shop. It is a sham defence.

48. Trial Court had based its version on a mis-appreciation of facts

as also of the evidence. Trial Court has nowhere discussed the

evidence of the prosecution; it has straightway jumped to the

evidence in defence and has believed the entire version set up by

the accused without giving any discussion on the evidence of the

prosecution. The judgment of the Trial Court is not only perverse

but it is based on manifest errors both on the factual as also on the

legal aspects which has resulted in a gross miscarriage of justice

qua the complainant. This Court sitting in appeal against the said

order is constrained to set aside the said order.

49. Judgement of the Trial Court is accordingly set aside.

Evidence on record has amply established that the respondents are

guilty. They are convicted for having conspired with each other and

having prepared the said forged affidavit Ex.PW-1/B with an intent

to cheat the complainant. The shop of PW-1 had been illegally

usurped, demolished and destroyed with the intention to cause an

irreparable and wrongful loss and damage to the complainant and a

consequent wrongful gain to the respondents. This was on the

strength of the forged affidavit Ex.PW-1/B. Respondents i.e. G.C.Jain

and Arun Ydav are accordingly convicted under Section 120B read

with Sections 468/471 and Section 427 of the IPC. They are

sentenced to undergo RI for one year for the offence under Section

120B of the IPC; for the offence under Section 468 of the IPC they

are sentenced to undergo RI for one year and to pay a fine of

Rs.10,000/- each, in default of payment fine to undergo RI for three

months. No separate sentence is called for under Section 471 of the

IPC. For the offence under Section 427 of the IPC both the

respondents are sentenced to undergo RI for six months. All the

sentences shall run concurrently. Benefit of Section 428 of the

Cr.P.C. be given to the respondents. Bail bonds and surety bonds of

the respondents stand cancelled. They are directed to surrender

forthwith to suffer the sentence.

50. Appeal is allowed in aforestated terms.

(INDERMEET KAUR) JUDGE

December 14, 2009 nandan