Punjab-Haryana High Court
Mithu Singh Brar vs Devinder Kaur And Anr on 16 October, 2024
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present application for leave to appeal is dated 07.01.2008. The matter has
come up for final hearing now after more than 28 years of the filing of the
complaint.
3. The instant complaint was filed by complainant Mithu Singh
Brar against the accused-Devinder Kaur and others under Sections 419, 420,
465, 467, 468, 470, 471, 474 and 477-A read with Section 120-B of the
Indian Penal Code, with the allegations that the complainant had purchased a
plot bearing No.7 situated at Village Jhill, Tehsil and District Patiala, bearing
Khewat Khatauni No. 447/1041 and now comprising in Khewat Khatauni
No. 682/1969/1 Khasra No. 65//12/2 (0-17) i.e. 17 Marlas (500 Sq. Yards)
vide sale deed dated 16.10.1985 from Om Parkash son of Sh. Megh Raj,
resident of Patiala. The complainant after the purchase of the plot had
constructed a room and a boundary Wall and mutation was sanctioned in his
name. He was in possession of the said plot. The complainant was also
living at Mandi Dabwali, District Sirsa and the accused knowing about this
fact, hatched a conspiracy to commit an offence with an intention to usurp
his property. Accused No.1 got prepared a forged power of attorney dated
29.12.1993 in her favour and the same was got signed by accused No.2 or
some other person by impersonating the complainant and it was falsely
witnessed by Gurdeep Singh son of Chanan Singh and Gurdial Singh of
village Wazidpur. The same was got registered with the Sub Registrar,
Patiala vide Wasika No.1448 dated 29.12.1993. The complainant had never
executed the said General Power of Attorney and the same did not bear his
signatures. The document was false, forged and a fabricated document and
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had been falsely got prepared by Devinder Kaur accused in her favour as
accused No.1 was never appointed as General Attorney by him. In fact
accused No. 1 had no right, title or authority to deal with the property in any
manner. Accused No.2 & 3 were his real brothers whereas the accused No. 1
was the sister-in-law of the complainant.
Devinder Kaur accused No.1 in connivance with the other
accused in order to usurp the property of the complainant falsely executed a
sale deed dated 24.01.1994 in favour of Bhola Singh, Balwinder Singh,
Sinder Singh and Nishan Singh sons of Jagir Singh for an amount of Rs.
75,000/-, which was witnessed by Devinder Singh and Sarwan Singh-
accused. The same was also got registered with the Sub Registrar, Patiala
vide Wasika No. 6360 dated 24.01.1994. The accused No.1 had no right, title
or authority to execute the sale deed dated 24.01.1994 in favour of accused
No.4 to 7 as Devinder Kaur was never appointed as an Attorney by the
complainant. The accused Bhola Singh and others derived no right or title in
the property. No consideration passed to Devinder Kaur or him. The
complainant filed a suit for permanent injunction titled as Mithu Singh Vs.
Jagraj Singh etc. as the accused intended to forcibly occupy the property
illegally, un-lawfully and also intended to sell the same. The suit was filed
on 16.08.1994. In the said civil suit, the accused disclosed about the General
Power of Attorney alleged to have been executed by the complainant in
favour of Devinder Kaur and the sale deed in favour of Bhola Singh etc. and
the complainant came to know about the illegal acts, mischief done by the
accused. The accused No.4 to 7 during the pendency of the suit forcibly
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occupied the plot of the complainant without any right, title or authority. He
had never executed any General Power of Attorney and also did not receive
the sale consideration. The complainant had requested the accused to
surrender the possession and get the sale deed cancelled but to no avail. He
had also approached the police, but to no avail. The accused had got
prepared the Power of Attorney by impersonation in order to cheat him. The
same was a false, forged and fabricated document. Hence, the complaint had
been filed on 1/6/1996.
4. On the presentation of the complaint, a request was made by the
counsel for the complainant for entrusting the complaint to Police Station
Kotwali, Patiala and accordingly vide order dated 01/06/1996 passed by the
then CJM, Patiala, the complaint was forwarded to Station House Officer,
Police Station Kotwali, Patiala for investigation under section 156 (3) of the
Code of Criminal Procedure. The report from Station House Officer, Police
Station Kotwali, Patiala was received on 19.09.1996 with the opinion that a
case under Section 420, 467, 468, 471 and 120-B IPC had been made out
from the statements of Mithu Singh and Om Parkash.
5. The said report was considered and thereafter, the complainant
was also directed to produce preliminary evidence, upon a perusal of which
accused No.1, 2 & 8 were ordered to be summoned to face trial for the
offences punishable under Section 467 and 471 IPC. The remaining accused
No. 3 to 7, 9 & 10 were not summoned.
6. Accused No.1 , 2 & 8 put in appearance and were released on
bail. Since it was a warrants case, the case was adjourned for pre-charge
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evidence of the complainant. In the pre-charge evidence, the complainant
got examined CW-1 OM Parkash Nagpal, PW-2 Bhagwan Singh, PW-3
Mithu Singh complainant, PW 4 Lal Chand (DSP retired) and Sh. Navdeep
Gupta also inadvertently numbered as PW 4. The complainant, thereafter,
closed the pre-charge evidence.
7. On perusal of the pre-charge evidence produced by the
complainant, vide order dated 22.05.2004 a charge-sheet was served upon
the accused No.1 & 8 for the offences punishable under Section 120-B, 465,
467 and 471 IPC. The accused No.2 Jagraj Singh was, however, discharged
vide said order dated 22.05.2004. Against the said order dated 22.05.2004
the complainant preferred a revision petition before the court of Addl.
Sessions Judge, Patiala and the same was dismissed vide order dated
07.06.2005.
8. After the framing of the charges, the complainant produced the
witnesses the and the witnesses were further cross-examined by the defence
counsel. The complainant thereafter closed the evidence.
9. The statements of the accused were recorded under Section 313
of the Code of Criminal Procedure on 10.05.2007, wherein the incriminating
evidence appearing against them accused was put to them. They denied all
the allegations and stated that they were innocent. Mithu Singh complainant
was the elder brother of Jagraj Singh and was residing with him. Jagraj
Singh helped the complainant in getting the business started. Thereafter,
wife of Mithu Singh pressurized him to get Devinder Kaur and others
involved in a false criminal case and prior to the marriage of Devinder Kaur
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with Jagraj Singh, the wife of complainant wanted that Jagraj Singh should
marry her younger sister. The complainant Mithu Singh shifted to Bathinda
and executed a Power of Attorney in favour of Devinder Kaur and she
disposed off the plot and the total sale consideration was handed over to the
complainant against a receipt. Later on, with a malafide intention, the
complainant instituted civil and criminal proceedings. The civil suit filed by
the complainant had already been dismissed.
10. The details of the complainant/prosecution evidence are as
under:-
CWI Sh. Om Parkash Nagpal, Advocate deposed regarding the
sale of the plot in dispute to the complainant vide sale deed dated
16/10/1985 and proved on the file as ExP1. However, this witness was not
produced for cross-examination after the framing of the charges and
therefore, the statement of this witness cannot be read in evidence.
PW2 Bhagwan Singh is the Registry Clerk with the office of
Sub-Registrar, Patiala and he brought the summoned record pertaining to the
General Power of Attorney dated 29.12.1993 and the sale deed dated
24.1.1994 and proved the certified copies thereof as Ex.P5 and Ex.P6
respectively.
PW3 Mithu Singh is the complainant himself and he deposed
that earlier he was residing with his brother Jugraj Singh at House No.382,
Dashmesh Nagar, Patiala. He purchased a plot vide sale deed dated
16/10/1985 from Sh.O.P. Nagpal and the mutation was also sanctioned in his
favour. The original sale deed was Ex.P1. The site plan annexed with the
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said sale deed was proved on the file as Ex.P2. The complainant further
deposed that he constructed a boundary wall around the said plot and used to
sow vegetables. He asked his brother Jugraj Singh to look after the same.
Devinder Kaur was his sister-in-law and wife of Jugraj Singh. Mohan Singh
was also his brother. He was now residing at Dabwali and taking advantage
of this fact, the accused persons forged a Power of Attorney dated
29/12/1993, impersonated him and produced some other persons as Mithu
Singh. He had never signed the said Power of Attorney dated 29/12/1993
and never appeared before Sub Registrar, Patiala. The witness also connived
with the accused Devinder Kaur and Jugraj Singh. On the basis of said
forged Power of Attorney, a sale deed dated 24/1/1994 was executed by
Devinder Kaur. The said plot had been sold for a consideration of Rs.75.000
whereas its market value was more than Rs.6 lacs at that time. The Power of
Attorney had been forged by the accused persons with an intention to grab
the plot of the complainant and he came to know about the same and
approached the police and thereafter, filed the complaint. He got the
signatures on the Power of Attorney compared from an Expert and the same
were found to be forged vide report Ex.P8.
PW4 Sh. Lal Chand was a retired DSP and he deposed that he
was posted as SHO, P.S. Kotwali, Patiala on 15/8/1996 and received a
complaint on the basis of which he made an inquiry and also recorded the
statement of Mithu Singh and others and submitted his report Ex.PW4/A. He
further proved the statement of Mithu Singh and Om Parkash recorded
during the investigation as Ex.PW4/B and Ex.PW4/C.
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PW5 Sh. Navdeep Gupta was a Document Expert, Patiala and he deposed
about his qualifications and further stated that in this case, he examined the
disputed signatures of Mithu Singh in English mentioned as Q1 to Q4 on the
certified Photostat copy of General Power of Attorney in civil suit No.670 of
24/10/1996 and compared these signatures with the standard signatures
marked as S1/A, S2/A on the Photostat copy of sale deed dated 10/10/1985,
S3/A on Vakalatnama dated 23/10/1996, S6 on Vakalatnama in favour of
Sh.S.K.Sharma, Advocate and S7 on another Vakalatnama in favour of
Sh.S.K.Sharma, Advocate and S7 on another Vakalatnama. He opined that
the disputed signatures had not been written by the same person, who wrote
the standard signatures. Rather the disputed signatures were forged
signatures by impersonation. He proved the report Ex.P9 and Ex.P10 and the
photographic charts Ex.P11 to Ex.P30 including the negatives.
The counsel for the complainant further tendered into evidence
certified copy of judgment dated 7/6/2005 and copy of challan report Ex.PX
and PY respectively.
11. The accused, on the other hand, got examined DWI Sh.R.V.
Vashista, an Handwriting and Finger Prints Expert and he deposed about his
qualifications and further stated that he examined the disputed, standard and
admitted signatures of Mithu Singh after obtaining the permission from the
Hon'ble Court in separate litigation i.e. the Civil Suit titled as "Mithu Singh
Vs. Devinder Kaur". In the present complaint, the signatures were examined
by him critically and minutely and he opined that the questioned signatures
and the standard signatures had been written by one and the same person.
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The copy of report was proved on the file as Ex.DWI/A, photographs were
proved on the file as Ex.DW/1B to Ex.DW1/N and the negatives were
Ex.DW1/O-1 to Ex.DW1/O-6. The certified copy of statement recorded
earlier was proved on the file as Ex.DW1/P.
12. Based on the evidence led, the respondent-accused came to be
acquitted vide judgment dated 05.10.2007 passed by the Judicial Magistrate
Ist Class, Patiala.
13. The aforementioned judgment is under challenge before this
Court.
14. The learned amicus curiae for the applicant contends that the
Trial Court had misread the deposition of Navdeep Gupta as well as the
deposition of R.V. Vashista, both of whom had given contrary findings
regarding the forgery of Power of Attorney dated 29/12/1993. The Court
was obligated to examine the reasoning given by the experts and ought to
have come to a finding after a proper examination. The Trial Court had
erroneously come to the finding that as the Civil Court findings had
culminated in favour of the accused, they were liable to be acquitted. In
fact, the findings in the civil case were not binding on the criminal Court.
He, therefore, contends that the impugned judgment was liable to be set
aside and the accused ought to be convicted for the offences in question.
15. We have heard the learned amicus curiae for the applicant and
examined the record.
16. The present complaint had been filed by the complainant on the
ground that the Power of Attorney dated 29/12/1993 had been forged by the
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accused persons. The only question to be determined is regarding the
forgery and fabrication of Power of Attorney dated 29/12/1993. Admittedly,
on the basis of similar facts, a civil suit impugning the Power of Attorney
dated 29/12/1993 as well as the sale deed dated 24/1/1994 was also filed by
the present complainant. The said civil suit already stood decided vide
judgment and decree dated 3/1/2006 passed by the Court of Ms.Jatinder
Kaur, PCS, Addl. Civil Judge, Sr. Division, Patiala. The copy of the
judgment and decree dated 3/1/2006 were proved on the file by the accused
as Ex DA and Ex.DB respectively. A perusal of the judgment dated 3/1/2006
would reveal that issue No.1 was framed in the said civil suit as under:-
"1. Whether the General Power of Attorney dated 29/12/1993 in
favour of defendant no.1 is forged and fabricated document?"
17. The findings on the said issue framed regarding the forgery of
Power of Attorney dated 29/12/1993 were returned against the plaintiff
Mithu Singh in the said Civil suit. Mithu Singh is the complainant in the
present case. It has clearly been observed that the present complainant
(plaintiff in the said suit) had produced inconsistent evidence and had not
been able to prove the alleged forgery in execution of the Power of Attorney
dated 29/12/1993.
18. In order to prove the forgery of the Power of Attorney dated
29/12/1993. the complainant-Mithu Singh himself stepped into the witness
box and also got examined an Expert witness Sh.Navdeep Gupta. On the
other hand, the accused got examined Sh.R.V. Vashista, Handwriting and
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Finger Prints Expert. The statements of both these expert witnesses were
also recorded in the civil litigation and those statements were produced in
the instant case. A perusal thereof reveals that it has been suggested by the
complainant that Devinder Kaur had signed as Mithu Singh on the Power of
Attorney dated 29/12/1993. The Power of Attorney dated 29/12/1993 is a
registered document and there are no allegations leveled by the complainant
against the Sub-Registrar, before whom the said Power of Attorney was
registered. It is highly improbable that a female would impersonate a male
person for creation of a document before a Public Servant. Such an
allegation cannot be believed. It has also come in the evidence of the
complainant that the accused No.1 & 2 were related to him. The complainant
was earlier residing with accused No.1 & 2 and thereafter, shifted to
Dabwali. Hence, there was every occasion for the complainant to execute the
said General Power of Attorney dated 29/12/1993 in favour of accused no.1.
19. The science of handwriting comparison is not a perfect science.
The expert witness produced by the complainant namely Sh. Navdeep Gupta
has stated during his cross-examination that some person have two or more
styles of signing their signatures. One style of signatures can have marked
variation from another style of writing. Same persons can also change the
writing slant of their signatures knowingly. Natural variations in the standard
signatures also occur. The accused, on the other hand, produced Sh. R.V.
Vashista, an Expert Witness and he has opined that the signatures of Mithu
Singh, complainant are there on the Power of Attorney dated 29.12.1993.
Therefore, the opinion of both private experts in favour of their respective
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parties would have little evidentiary value and the attending facts and
circumstances are to be seen.
20. The accused also proved on record a copy of order dated
17.05.2006 passed by the court of Sh. A.K. Singal, Sub Divisional Judicial
Magistrate Dabwali, in complaint case No. 314-T/10-09-1998/18-082003/6-
12-2005 and the same was also decided in favour of the accused and against
the present complainant.
21. As to how an appeal against a judgment of acquittal is to be
dealt with, the Hon'ble Supreme Court in Kallu @ Masih & Ors. Vs. State
of Madhya Pradesh 2006(1) RCR (Criminal) 427 has held as under:-
" 8. While deciding an appeal against acquittal, the power
of the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear
in mind that there is a presumption of innocence in favour
of the accused and the accused is entitled to get the benefit
of any doubt. Further if it decides to interfere, it should
assign reasons for differing with the decision of the trial
court."
22. In view of the aforementioned discussion and keeping in view
the law laid down in Kallu @ Masih & Ors. Case (supra), we find no reason
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to interfere with the well reasoned judgment dated 05.10.2007 passed by the
Judicial Magistrate Ist Class, Patiala has been acquitted. Therefore, the
application for seeking grant of leave to appeal stands dismissed.
( JASJIT SINGH BEDI ) ( SUDHIR SINGH )
JUDGE JUDGE
October 16, 2024
sukhpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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