IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR No. 1970 of 2009 (O/M).
Date of Decision : October 21, 2009.
Jatinder Singh
...... Petitioner(s).
Versus.
State of Punjab, and others ..... Respondent(s).
CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present:- Mr. Rajiv Joshi, Advocate,
for the petitioner(s).
AUGUSTINE GEORGE MASIH, J. (ORAL).
Counsel for the petitioner has submitted that order dated
25.03.2009 (Annexure-P-1), vide which the evidence of prosecution was
closed by the Court, is not sustainable for the reason that on that very day, an
application was moved by Shri L.S. Dhami, Advocate, who had brought to
the notice of the Court that the present petitioner was not available as the
summon was not served at his old address and when he came to know about
the same, he had asked the counsel to inform the Court about his non
availability for the reason that he had gone to Delhi and was not in Jalandhar.
He on this basis submits that an opportunity should have been given to the
prosecution to produce the petitioner and other witnesses, who had also
informed similarly by Shri L.S. Dhami, Advocate, about their being not
available. His contention is that order of acquittal dated 27.03.2009, passed
by the Trial Court, cannot be sustained for the reason that the prosecution
evidence was closed by the Trial Court without taking into consideration the
justified reasons given by the witnesses for their non appearance before the
Court.
CRR No. 1970 of 2009. -2-
Counsel for the petitioner has relied upon the judgment of
Karnataka High Court in the case of The State of Karnataka Versus
Nallayappa, 1996 Criminal Law Journal, 3539.
I have heard counsel for the petitioner and have gone through
the order dated 25.03.2009, which according to counsel for the petitioner has
been wrongly passed by the Trial Court.
A perusal of the same would show that the case pertains to the
year 2004, wherein charge was framed on 28.04.2005 and on not less than
20 occasions, summons were duly issued to effect service upon the witnesses
on the request of the prosecution. It has further come on record that the
summons were even sent through the learned District and Sessions Judge,
Jalandhar, but on none of the occasions, the witnesses came present in the
Court. The application, reference whereof has been made by counsel for the
petitioner, which was submitted by Shri L.S. Dhami, Advocate, before the
Court, wherein it was stated that Satwant Kaur, Harbhajan Singh and
Jaswant Singh, had given reasons for their non appearance before the Court,
were not found to be justified as apart from other reasons there was no
power of attorney in his favour on behalf of complainant nor was he
authorised to appear on behalf of complainant or to move an application.
The said application was also not supported by any affidavit, although, a
note was given on the application that he is filing the present application on
the basis of telephonic instructions issued by Jitender Singh.
The matter being old and already more than 20 opportunities
having been granted by the Court for production of prosecution witness, the
prosecution having failed to do so, the Court had no option, but to close the
evidence of the prosecution. No fault, therefore, can be found in the order
CRR No. 1970 of 2009. -3-
dated 25.03.2009, passed by the learned Trial Court. That being so, the
order passed by the Trial Court dated 27.03.2009 based on the evidence,
which has been produced by the prosecution, is fully justified as is apparent
from the perusal of judgment. Paras 13 and 14 deal with the evidence of the
prosecution, which is reproduced herein below :-
“13. After giving thoughtful consideration to the rival
submissions of both the parties and on careful perusal of the
evidence adduced in the present case, coupled with due
assistance rendered, the court does not find any merit in the
submissions put forth by the learned APP for the State. It is
worth making mention that the prosecution has examined two
witnesses ASI Sukhvir Singh who simply deposed qua arrest of
the accused and PW2 Gurdeep Singh has stated qua according
of sanction for lodging prosecution against accused Bachittar
Singh, Halqa Patwari who was public servant but the
prosecution in the present case, has utterly failed to bring home
the essential ingredients as to the affidavit of Santokh Singh has
been forged as the said document has not been produced on file
nor it has been established by cogent and legal evidence as to
accused having used the said document and got the revenue
record altered to take benefit on the basis of alleged forged
document. It was inevitable for the prosecution to firstly
establish as to Santokh Singh having died in the year 1984 and
further that he has not sworn an affidavit and that it were the
accused who have forged the said document i.e. affidavit and
had used the same for getting the revenue record changed in
their favour. But truly speaking there is not even an iota of
evidence to fortify the said fact. It is worth making mention that
the charge has been framed against the accused for offence
under Section 420 of I.P.C. as to their having committed offence
of cheating whereby they have allegedly forged the alleged
affidavit by fabricating the same of one Santokh Singh, who has
allegedly died in the year, 1984 and further that they have got
CRR No. 1970 of 2009. -4-changed the revenue entries qua khasra girdawaries pertaining
to Khasra No. 2205 but neither the revenue record has been
produced nor the said fact has been established by way of
cogent and legal evidence.
14. Can it be inferred as to the prosecution having
established essential ingredients qua both the points of
determination and can any reliance be placed to the
submissions put forth by the learned APP for the State as to the
application having written by learned Deputy Commissioner,
Jalandhar ? The answer is certainly in the negative. The Court
is of the considered view that it is fit case for affording benefit
of doubt to the accused as the prosecution has utterly failed to
establish as to accused having forged and fabricated the
affidavit of one Santokh Singh who had already died in the year
1984 and that on the basis of alleged affidavit, revenue entries
pertaining to khasra No. 2205 have been changed to cause loss
to the rightful owner and further the said document which has
been forged and fabricated has been used as genuine document.
The prosecution has failed to bring home the guilt qua offence,
under Sections 420, 465, 468, and 471 of I.P.C.”
In view of the above, the order passed by the Court below is
fully justified and in accordance with law and, therefore, does not call for
any interference by this Court.
Dismissed.
(AUGUSTINE GEORGE MASIH)
JUDGE
October 21, 2009.
sjks.