For the sake of convenience, the parties are referred to as per their rank in C.C. No. 4274 of 2013.
2. The defacto complainant has filed a Private complaint before the learned II Metropolitan Magistrate, Egmore, Chennai in C.C. No. 4274 of 2013 seeking to initiate against the accused 1 to 4 therein for having allegedly committed the offences punishable under Sections 120-B, 420, 465, 467 and 474 of IPC.
3. According to the defacto complainant, the first accused is the elder brother. According to the defacto complainant, on 16.12.1977, his father entered into an agreement of sale with one James Allen and two others with respect to a property measuring three grounds and 1880 sq.ft in R.S. No. 709/2 at Vepery, Chennai. The sale deed dated 30.01.1979 in the name of Late. Manakchand Jamad and his wife which was registered as document No.97 of 1979 on the file of Sub-Registrar, Periamet. The father of the defacto complainant has also purchased another property land measuring 2 grounds and 692 square feet in R.S. No. 1264/15 vide sale deed dated 25.09.1987 in the name of his wife and the first accused herein, who is the brother of the defacto complainant. According to the defacto complainant, both the above properties have been purchased by the self-acquired funds of his father/Late. Manakchand Jamad. Late. Manakchand Jamad also filed O.S. No. 3023 of 1988 before the learned XII Assistant Judge, City Civil Court, Chennai for evicting the tenant in the above said property and obtained a decree thereof. He also filed E.P.No.783 of 1994 before the learned IX Assistant Judge, City Civil Court, Chennai. Subsequently, Late. Manakchand Jamad purchased another property vide sale deed dated 22.02.1988 vide document No. 1198 of 1988 on the file of SRO, Poonamallee. On 22.04.2001 the said Manackchand died intestate and his wife also died intestate on 11.06.2004.
4. According to the defacto complainant, having trust in the first accused entrusted the management of the joint family properties and also to initiate Civil Cases as against the joint family properties. During, December 2010, the first accused requested the defacto complainant to execute power of attorney in his favour for the purpose of contesting the suit filed by him on their behalf in E.A.No.2324 of 2010 before the City Civil Court, Chennai. The first accused assured the defacto complainant that he has also informed the action initiated by him to the other legal heirs and they have agreed to execute power of attorney in his favour. Accordingly, on 16.12.2010, the defacto complainant executed a power of attorney in favour of the first accused in the presence of his sisters. At that time, the first accused along with his advocate T.Sundaresan has obtained the signatures of the defacto complainant, his four sister in certain documents for executing the power of attorney, leaving the other sisters. Subsequently, when the defacto complainant demanded for a copy of the power of attorney for his perusal, the first accused did not respond properly which created a doubt in the mind of the defacto complainant. On 25.03.2011, when the defacto complainant applied for encumbrance certificate, he was shocked to see the entry of release deed vide document No.2625 of 2010, pertaining the property and immediately he applied for certified copy of the released deed. The defacto complainant came to know that the first accused had conspired with the other accused, cheated him and his sisters. When questioned by the defacto complainant, the first accused regretted for the mistake committed by him and promised to cancel the forged documents on completion of the pending litigation. Subsequently, the defacto complainant requested the first accused as to why he has not any taken steps to cancel the Settlement deeds, the first accused threatened the defacto complainant with dire consequences. At that time, the defacto complainant also came to know that the first and second accused colluded together and also created a partition deed dated 16.12.2010. Thus, the accused 1 and 2 indulged in a criminal conspiracy, defrauded the defacto complainant and others and gained unlawful enrichment. The defacto complainant also came to know that the recitals contained in the partition deed states that a sum of Rs.10,00,000/- was given by the first accused to the sisters namely Chandra Kothari, Pushpa and Nirmala, but no such payment was paid to them. The documents created by the first and second accused were attested by the third accused. The fourth accused facilitated the fabrication of the forged partition deed, settlement deed and other documents knowing fully well that they are forged. Thus, the accused have indulged in criminal conspiracy, created forged and fabricated documents and deceived the defacto complainant of his lawful right over the properties left behind by his father.
5. The learned II Metropolitan Magistrate has taken the complaint on file and commenced trial. During the course of trial, the defacto complainant examined himself as PW1 along with three other witnesses namely PWs 2 to 4 and Exs.P1 to 28 documents were marked. On behalf of the accused, no witness was examined but Exs.R1 to R4 documents were alone marked. The trial court after appreciation of the oral and documentary evidences, convicted the accused for the offences punishable under Sections 420, 465, 467, 474 and 120 (B) of IPC and sentenced them to undergo imprisonment.
6. Aggrieved against the Judgment of conviction passed by the trial court, the accused filed C.A.Nos. 135 of 2014 before the learned VII Additional Sessions Judge, Chennai. The appellate Court, partly allowed the appeal on 19.02.2016 by confirming the conviction and sentence imposed as against the first, third and fourth accused, and acquitted the second accused.
7. As against the order of acquittal passed against the second accused, the defacto complainant has filed the above Criminal Appeal No. 492 of 2016. The fourth accused has filed Crl.R.C. No. 382 of 2016 and the first accused has filed Crl.R.C. No. 384 of 2016, as against the judgment of conviction passed by them by the appellate Court confirming the judgment of the trial Court.
8. Both the criminal appeal and the criminal revisions are directed against the judgment made in C.A.No.135 of 2014 dated 19.02.2016 on the file of the VII Additional Sessions Judge, City Civil Court, Chennai.
Crl.A.No.492 of 2016
9. The learned Counsel for the appellant/defacto complainant in the criminal appeal contended that the trial Court and the first appellate Court without considering the evidences adduced on the side of the prosecution charged against A2 to A4. The trial Court failed to consider the partition deed and release deed as it is created by A1 and A2 by playing deceptive of the belonging to other co-heirs. The first appellate Court after looking into the documents produced on the side of the complainant and some corrections are found in the Ex.P6 and Ex.P7 corrections made in the document by applying whitener, the ranks initially typed are erased by whitener and handwritten in pen. There are so many corrections found in the release deed that the names was initially typed and subsequently erased by applying whitener, initially the ranks typed were erased by whitener from 3 to 6 and handwritten as 2 to 5, without considering the above facts and circumstances, the lower appellate Court erroneously acquitted A2 from all the charges. There is no explanation put forth on the side of A2 that he is having the copy of the demand draft and failed to produce the same before the trial Court as well as before the lower appellate Court. The trial Court after perusing the oral and documentary evidence adduced on either side rightly convicted the accused and the lower appellate Court without taking note of the above aspects erroneously acquitted the accused/A2 from all the charges levelled against him. The learned counsel for the appellant prays to set aside the judgment of the lower appellate Court and to confirm the order of the trial Court.
10. The learned counsel appearing for respondent/A2 vehemently contended that the first appellate Court after looking into the evidence and the documents adduced on both sides acquitted A2 from the charges levelled against him. The charges framed against A2 is not at all proved beyond reasonable doubt and giving the benefit of doubt in favour of A2, the first appellate Court acquitted A2 from all the charges and there is no illegality or infirmity in the order of the first appellate Court and the learned counsel prays for dismissal of the criminal appeal filed by the defacto complainant before this Court.
Crl.RC.Nos.382 and 384 of 2016
11. The learned counsels appearing for the revision petitioners/A4 and A1 contended that the first appellate Court after analysing the evidences adduced on the side of the complainant erroneously confirmed the conviction and sentence passed against the revision petitioners. The trial Court failed to consider the fact, the available evidence did not conclusively prove the petitioners guilty A2 and A4, the trial Court and the first appellate Court not followed the principles laid down by the Hon'ble Apex Court and failed to appreciate the evidence during the course of trial. There are so many discrepancies and the contradictions in the evidences of the complainant and creates reasonable doubt on the side of the complainant, the evidences are very vague and not conclusive and not definite. The trial Court over looked the provisions under Section 474 IPC and comes to a wrong conclusion, the trial Court failed to consider the fact that PW1 to PW4 were examined and PW1 to PW3 were not been cross examined by the accused persons, the charges were deposed by PW1 to PW3, the trial Court irrespectively decided the issue on the naked eye and compares the signature of the said Badan Bai which is signed 10years back. The trial Court come to a wrong conclusion contrary to Section 114 of the Indian Evidence Act. In view of the same, the trial Court ought to have comes to a conclusion that the charges levelled against A1 and A4 are not proved beyond reasonable doubt. The learned counsel for the petitioners prays this Court to set aside the judgments of the Courts below and to allow the criminal revisions by acquitting the revision petitioners from all the charges levelled against them.
12. The learned counsel for the complaint would vehemently contended that both the Court below after appreciating the entire facts and circumstances and the oral and documentary evidences adduced on either side, correctly convicted the accused/A4 and A1 for the charges framed against them and there is no illegality or infirmity in the judgment of conviction and sentence passed by the Courts below, the learned counsel for complainant prays for dismissal of both the revision petitions.
13. The learned Counsel appearing for the appellant/complainant in the criminal appeal and the respondent in both the criminal revisions relied on the following judgments :-
1. (1998) 6 SCC 554 - State of A.P. V.
Thakkidiram Reddy and others - wherein the Hon'ble Supreme Court has held in paragraph 10 which reads as follows :-
"10.Sub-Section (1) of Section 464 of the CrPC, 1973 (Code for short) expressly provides that no findings, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact (emphasis supplied) been occasioned thereby. Sub-Section (2) of the said section lays down the procedure that the Court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is section 465 of the Code; and it lays down that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that Court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission of irregularity in any proceeding under this code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
2. 2004 (7) SCC 659 - State of Maharastra V. Jagmohan Singh Kuldip Singh Anand and others - wherein paragraph 22 of the judgment reads as follows :-
"22.The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.PC. Section 401 Cr.PC is provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence of supervision as a part of power of revision conferred on the High Court or the Session Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."
3. (2010) 8 SCC 383 - Meghmala and others V.G.Narasimha Reddy and others - Wherein the Hon'ble Apex Court has held in paragraphs 34 and 45 are as follows :-
34.An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i)knowingly, or (ii)without belief in its truth, or (iii)recklessly, careless whether it be true or false, suppression of a material document would also amount to a fraud on the Court, (vide S.P.Chengalvaraya Naidu Gowrishankar V. Joshi Amba Shankar Family Trust, Ram Chandran Singh V. Savitri Devi, Roshan Deen V. Preeti Lal, Ram Preeti Yadav v. U.P.Board of High School & Intermediate Education and Ashok Leyland Ltd., V. State of T.N.) 45.There is a registered sale deed dated 21.05.1980 in favour of the appellant applicant. Nobody has ever filed any application before the competent Court to declare the said sale deed as null and void. The respondents have no right or interest in the suit property. The society claimed to have an agreement to sell in its favour which did not confer any title in favour of the Society. A finding of fact had been recorded in earlier proceedings that the appellant applicant was in actual physical possession of the land and he was illegally/forcibly dispossessed by the respondents."
4. 2014 (1) ACR 147 (SC) - Gangabhavani V. Rayapati Venkat Reddy and others - Wherein the Hon'ble Apex Court has in paragraph 17 of the judgment held as follows :-
"17.This Court in Laxmibai (dead) Thr. L.R.S. and another V. Bhagwanthwa (dead) Thr.LRs and others AIR 2013 SC 1204 examined the effect of non cross- examination of witness on a particular fact/circumstance and held as under :-
"31.Furthermore, there cannot be any dispute with respect to the settled legal proposition that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without thus, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."
5. 2015 (5) CTC 214 - Chandra Babu V. State and others - wherein the Hon'ble Apex Court has held in paragraph 12 is as follows :-
"12.First, we shall dwell upon the issue whether the High Court, in exercise of the Revisional jurisdiction, should have adverted to the merits of the case in extenso. As the factual matrix would reveal, the learned Single Judge has dwelled upon in great detail on the statements of the Witnesses to arrive at the conclusion that there are remarkable discrepancies with regard to the facts and there is nothing wrong with the investigation. In fact, he has noted certain facts and deducted certain conclusions, which, as we find, are beyond the exercise of Revisional jurisdiction. It is well settled law that inherent as well as Revisional jurisdiction should be exercised cautiously. Normally, a Revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court (see. Amit Kapoor V. Ramesh Chander, 2012 (9) SCC 460)."
6. AIR 2016 SCC 3190 - Jagdish V. State of Haryana - wherein the learned counsel relied on paragraph 19 of the judgment which reads as follows :-
"19.It is a settled principle of law that this Court cannot appreciate the entire evidence denovo in a routine manner while hearing the criminal appeal and that too when the conviction is based on concurrent findings of two Courts. It is only when this Court comes to a conclusion that the impugned finding though concurrent in nature is wholly arbitrary, unreasonable or/and perverse to the extent that no judicial mind of average capacity can ever record such conclusion, the Court may in appropriate case undertake the exercise of appreciating the evidence to the extent necessary to find out the error.
7.2010 (3) MWN (Cr.) 388 - Jayapal V. State rep by Inspector of Police, CCIW, Tuticorin - Wherein the learned single judge of this Court held in paragraphs 10 and 11 of the order which reads as follows :-
"10.The findings of the Courts below are based on oral and documentary evidence. Under the Revisional power, this Court cannot conduct rowing enquiry of the oral and documentary evidence unless the finding of the Courts below is perverse and any illegality was committed. As far as the Revisions petitioner in 774 to 779 is concerned, he was the President of the Cooperative Society and even according to the prosecution, he was only a Co-conspirator and he has signed in the cheques in the capacity of the President. The prosecution has failed to prove that he has received the misappropriated amount. As rightly pointed out by the learned counsel for the Revision Petitioner at the worst he may be negligent and not careful in discharging the duty. As held in R.Siva Subramanian V. State, 2008 (1) MLJ (crl.) 810, mere supervisory lapse cannot attract the penal provisions unless it is proved that he has personally benefited. Therefore, I am of the considered view that the prosecution has failed to prove that the Revision Petitioner in 774 to 779 of 2007 had committed misappropriation. Hence, the Crl.RC.Nos.774 to 779 of 2007 stands allowed.
11.As far as the Revision Petitioner in Crl.RC.Nos.7 to 16 of 2008, who was the Secretary is concerned, prosecution has proved the case. However, considering the age of the petitioner and the pendency of the entire proceedings from 2003 for the alleged offences of the year 1999, the sentenced imposed 24 months is modified to six months."
8. The judgment of the Rajasthan High Court (Jaipur Bench) reported in 2015 Crl.LJ 2447 - Vikram
v. State of Rajasthan and another - Wherein the learned judge has held in paragraphs 15 to 17 are as follows :-
"15.In the case of Rajendra Prakash & Another (supra) has judgment of the Hon'ble Supreme Court in the case of V.M.Shah (AIR 1996 SC 339) (supra) has been referred. The issue in the case of V.M.Shah was in reference to Section 630 of the Companies Act, 1956. Therein, the civil Court decided the factual dispute holding that appellant had not come in the possession of the property through the company but has independent tenancy rights from the landlord. Taking into consideration the controversy therein and in respect of Section 630 of the Companies Act, it was held that the judgment of the Civil Court will prevail. It is in the given facts and circumstances in reference to application of Section 630 of the Companies Act and not in regard to the allegation of criminality by an act or omission. The judgment in the case of V.m.Shah (AIR 1996 SC 339) (supra) was not followed in the case of KG.Premshankar v. Inspector of Police and others (2002) 8 SCC 87 : (AIR 2002 SC 3372) (2002 (Crl LJ 4343) paras 32 and 33 are quoted hereunder "32.In the present case, the decision rendered by the Constitution Bench in MS.Sheriff's case (AIR 1954 SC 397) (supra) would be binding, wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal Courts is not a relevant consideration. The law envisages "such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages."
33.Hence, the observation made by this Court in VM.Shah's case (AIR 1996 SC 339) (supra) that the finding recorded by the criminal Court stands superseded by the findings recorded by the civil Court is not correct enunciation of law. Further, the general observations made in Karam Chand's case, (AIR 1971 SC 1244) are in context of the fact of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S.Sheriff's case as well as Section 40 to 43 of the Evidence Act."
16. The issue as to whether a criminal case can proceed during pendency of the civil case has already been answered by the Hon'ble Apex Court in the specific terms in the case of KG.Premshankar (supra) and would be binding on this Court. It is a considered view of the Hon'ble Apex Court that mere pendency of civil litigation or initiation of it, would not debar criminal case. If the view is taken in case of a civil litigation, criminal case cannot proceed, then it would mean complainant would not be permitted to pursue the case separately. The aforesaid cannot be the intention of the legislature and has been considered by Hon'ble Supreme Court in the case of KG.Premshankar, (2002, Cri.LJ 4343) (supra).
17. In view of aforesaid, it cannot be said that investigation pursuant o the FIR cannot proceed after a decree of the civil Court. It is more so when it is subject matter of appeal and status quo order exists in favour of the complainant. If, today, impugned FIR is quashed in the light of the decree of the civil court and tomorrow, appeal is allowed reversing the decree of the civil court, whether FIR can be revived. This is another question to be answered by this Court."
14. The learned counsel for the revision petitioner/A4 in Crl.RC.No.382 of 2016, cited the following authorities, which are as follows :-
1. 2008 (10) CTC 895 - Selvi and others v. Gomathy Ammal - wherein this Court held in paragraph 22 of the order which is extracted hereunder:-
22. Therefore, form the close reading of the provision of Section 3 of the Transfer of Property Act, 1882 and Section 68 of the Evidence Act as well as the decisions referred to above, it is made clear that where an attesting witness stated in his evidence that he has seen the signature of executant, itself is sufficient proof and valid attestation. To put it in a nutshell, the role of attesting witness to a document required by law to be attested is that he should see signature of executant and executant must see his signature and he need not prove the contents of document.
2. Yet another judgment of the Kerala High Court reported in 2011 (3) KLT 280 - Thavarayil Salim V. Thekkeveetti Karuvantevalappil Saru Umma - wherein the Court has placed his reliance on the judgment reported in Ganesh Bhandary V. Ambunhi - 1989 (2) KLT 882 - An attesting witness need not know the contents of the document. By reason of mere attestation of a document, it is not possible to attribute to an attestor the knowledge of the contents of a document.
15. Heard the rival submissions made on both sides and perused the records.
16. Admittedly, the defacto complainant and the first accused are brothers. The second accused is the son of the first accused. It is admitted by that there are four sons and six daughters born to the deceased Manackchand Jamad and Badan Bai. One of the son by name Rajesh, who is the defacto complainant filed a private complaint against Parasmaljain (A1) and his son and two others namely A-3 and A-4 alleging that they have entered into a criminal conspiracy, forged and fabricated the documents and deprived the rights of the defacto complainant. It is further admitted that Manackchand, out of his own income, purchased the properties in his name and in the name of his wife/Badan Bai and the properties are purchased from and out of the joint family nucleus. Mr.Manackchand Jamad died on 22.04.2001 and his wife Bandan Bai died on 11.06.2004 leaving behind their children as their legal heirs. It is also admitted by both sides that the father and mother died intestate.
17. During trial, the defacto complainant was examined as PW1 and brothers of the defacto complainant as well as first accused were examined as PWs 2 to 4. They have deposed that on request of the first accused along with second accused, they have signed certain documents purported to be power of attorney but they were made use of to execute partition deed and settlement deed. They have also deposed that the first accused realised his mistake and gave assurance to cancel all the forged documents. It is brought to the notice of this Court that under Ex.P27, the Collector of the District, after conducting enquiry with the first accused and others, the Collector directed to cancel the earlier legal heir certificates and directed the Tahsildar, Fort-Tondiarpet to issue fresh legal heir certificate after conducting fresh enquiry. Thus, the documents viz., Ex.A1 to Ex.A29 marked on the side of the defacto complainant clearly proves the guilt of the accused. The accused have not taken any steps to disprove the documentary evidence marked on the side of the defacto complainant. The accused have produced only Exs. R1 to R4 which does not helps them to disprove the case of the defacto complainant. On 16.12.2010 when Ex.P.5 release deed and Ex.P.6 deed of family partition have been registered before the Sub registrar, Periamet, Chennai as document No.2625 and 2624 of 2010 respectively. On perusal of the Ex.P.6 deed of family partition it reveals that Mr.M.Badam Chand Jamad, Mr.Parasmal Jain, Gowtham Chand Jamad, K.Chandra, A.Pushpa, Mrs.Nirmala and Mr.M.Rajesh have entered into a deed of family partition as if they are the only legal heirs of the deceased parents and thereby claiming 1/7th share in schedule mentioned properties. It is pertinent to mention that Mr.M.Gowtham Chand Jamad who is also one of the son of the deceased parents did not sign in Ex.P.6 and three female members/daughters of deceased parents namely Tmt.Indirakala, Tmt.Thara Chhajed, Tmt.Meena Devi were purposely left out in the partition deed. However, this document was some how registered before the registration authority, in the document No.page 28/Ex.P6 it is also made a note that the third part/Goutham Chand is purposely evading to sign the document and he is out of station, and requested the authority to register the document without the signature of third part. On perusal of Ex.P.5 release deed dated 16.12.2010, it reveals that Mr.Badam Chand Jamad, Mr.M.Rajesh who are the sons of the deceased parents and Mrs.K.Chandra, Mrs.A.Pushpa, Mrs.Nirmala who are the daughters of the deceased parents had executed release deed to and in favour of the first accused Mr.Parasmal Jain. It is also pertinent to note that Gowtham Chand and three female heirs of the deceased Manackchand Jamad was not shown as party in Ex.P.5/release deed. Admittedly the recitals of the Ex.P.5 release deed and Ex.P6 partition deed were typed in English and Ex.P.5 release deed would show that releasors have released their share in the Periamet property for consideration of Rs.10,00,000/-. On scrutinizing the Ex.P.5 release deed and Ex.P6 partition deed it would reveal that out of half share of the property in Periamet property, the five releasors have been made to release their share to and in favour of first accused/Parasmal Jain.
18. On careful reading of the Ex.P25 dated 30.10.2012 complaint given by the legal heirs of the deceased Manakchand Jamad and Madan Bai, it is stated that the names of three daughters have been omitted in the legal heirs certificates of the deceased parents. Further, in the Ex.P26 dated 30.10.2012, the statement of first accused before the District Collector has stated that the names of the three daughters have been left out in the legal heir certificate of the deceased father/Manakchand Jamad, based on the misrepresentation of the first accused/Parasmal Jain, the present complainants and the statement given by the first accused states that the present complainants have no objection in adding the names of the other three daughters of the deceased parents in the legal heir certificate of the deceased mother/Badam Bai. The statement of the Padam Chand before the District Collector dated 30.10.2012 is extracted hereunder :-
âù¶ îèŠðù£˜ èì‰î 22.4.2001 Ü¡Á, îèŠðù£˜ Þø‰î Hø°, «è£-î õ†ì£†Cò˜ ܽõôèˆF™ G.º. Ü6/30148/2001  23.11.2001 õK¬ê â‡.1654 âù õ£K² ꣡Á ªðŸÁœ«÷¡. «ñŸð® õ£K² ꣡P™, âù¶ ê«è£îKèœ, F¼ñF. Þ‰Fó£èô£, F¼ñF. î£ó£ ê£Tˆ, F¼ñF. eù£ «îM ÝA«ò£K¡ ªðò˜èœ îõÁîô£è M ´ð†´ M†ì¶. Hø° âù¶ î£ò£˜, 11.6.2004-™ Þø‰î Hø° õ£K² ꣡Á ªðÁ‹ «ð£¶, ãŸèù«õ, îèŠðù£K¡ ÞøŠ¹‚°ŠH¡ ªðøŠð†ì õ£K² ꣡P¡ Ü®Šð¬ìJ«ô«ò «ñŸð® Í¡Á ïð˜èO¡ ªðò˜èœ Þ™ô£ñ«ô õ£K² ꣡Á G.º.Ü6/21194/07  29.6.2007 õK¬ê ⇠3276/2007- âù õ£K² ꣡Á ªðøŠð†´M†ì¶. âù«õ, îõÁîô£è ªðøŠð†ì õ£K² ꣡Áè¬÷ Þóˆ¶ ªêŒ¶M†´, M´ð†ì ïð˜èO¡ ªðò˜è¬÷»‹ «ê˜ˆ¶, ¹Fò õ£K² ꣡Á õöƒè ݆«êð¬ù Þ™¬ô âù ªîKMˆ¶‚ ªè£œA«ø¡. «ñ«ô ªîKMˆî¬õò£¾‹ à‡¬ñ. îõø£ù¬õ âùˆ ªîK‰îð„êˆF™ â´‚èŠð´‹ ê†ìŠð®ò£ù ïìõ®‚¬èèÀ‚° 膴Šð ´«õ¡.
19. On perusal of the Ex.26 dated 18.07.2013, wherein the District Collector after conducting enquiry directed the Tahsildar, Fort-Tondiarpet to cancel the two legal heir certificates in Ne.Mo.No.A6/30148/2001 dated 23.11.2001 and Ne.Mo.No.A6/21194/2007 dated 29.06.2007 Va.No.3276/2007 and directed the Tahsildar, Fort-Tondiarpet to conduct discreet enquiry and to take necessary steps for issuing correct legal heir certificate by adding all the legal heirs. The order of the District Collector dated 18.08.2013 is extracted hereunder :-
F¼. M.ðó£vñ™ ªüJ¡ â¡ðõ˜ ÜOˆ¶œ÷ õ£‚°ÍôˆF™ îù¶ îò£¼‚° œ 10 ïð˜èœ Hœ¬÷èœ Ý«õ£‹ â¡Á‹, ÞF™ 4 «ð˜ ݇èœ, 6 «ð˜ ªð‡èœ â¡Á‹, Þõ˜è¬÷ˆ îMó «õÁ ò£¼‹ õ£K²î£ó˜èœ Þ™¬ô â¡Á‹, îù¶ îèŠðù£˜ èì‰î 22.04.2001 Ü¡Á Þø‰î Hø° «è£†¬ì ìò£˜«ð†¬ì õ†ì£†Cò˜ ܽõôèˆF™ G.º.Ü6/30148/2001,  23.11.2001, õ.â‡.1654 âù õ£K² ꣡Á ªðŸÁœ÷î£è¾‹, «ñŸð® õ£K² ꣡P™ îù¶ ê«è£îKèœ F¼ñF Þ‰Fóèô£, F¼ñF.î£ó£ê£Tˆ, F¼ñF.eù£«îM ÝA«ò£K¡ ªðò˜èœ îõÁîô£è M´ð†´M†ì¶ â¡Á‹, Üî¡ H¡ù˜ îù¶ î£ò£˜ 11.06.2004™ Þø‰î Hø° õ£K² ꣡Á ªðŸø «ð£¶ ãŸèù«õ, îèŠðù£K¡ ÞøŠ¹‚°ŠH¡ ªðøŠð†ì õ£K² ꣡P¡ Ü®Šð¬ìJ«ô«ò «ñŸð® Í¡Á ïð˜èO¡ ªðò˜èœ Þ™ô£ñ™ õ£K² ꣡Á G.º. Ü6/21104/2007,  29.06.2007, õ. â‡. 3276/2007 âù ªðøŠð†´M†ì¶ â¡Á‹, âù«õ îõÁîô£è ªðøŠð†ì õ£K² ꣡Áè¬÷ Þóˆ¶ ªêŒ¶M†´ M´ð†ì ïð˜èO¡ ªðò˜è¬÷ «ê˜ˆ¶, ¹Fò õ£K² ꣡Á õöƒè ݆«êð¬ù Þ™¬ô â¡Á‹ ªîKMˆ¶œ÷£˜.
1. Mê£ó¬íJ¡ Ü®Šð¬ìJ½‹, ñÂî£ó˜èœ ÜOˆ¶œ÷ õ£‚°ÍôˆF™ ªîKMˆ¶œ÷ MõóƒèO¡ Ü®Šð¬ìJ½‹ õ†ì£†Cò˜ ܽõôè‹ «è£†¬ì- ìò£˜«ð†¬ì õ†ìˆF™ õöƒèŠð†ì õ£K² ꣡Á â‡. (1) G.º.Ü6/30148/2001,  23.11.2001,  23.11.2001, õK¬ê â‡. 1654 (2) G.º. Ü6/21194/2007,  29.06.2007, õ.â‡. 3276/2007 Þóˆ¶ ªêŒ¶ àˆîóMìŠð´Aø¶.
20. On reading of the documentary evidence as well as the deposition of the witnesses, it is clear that PW2 and PW4 are sons of the deceased Manakchand Jamad and A3 and A4 were family friends and A1 colluded with A2 and signed certain documents. Such documents were made use of to obtain legal heir certificate by omitting some of the legal heirs. Hence the trial Court held that the guilt as against A3 and A4 were clearly proved beyond any reasonable doubt. Similarly, the trial Court also held that the second accused, son of first accused, knowing fully aware of available legal heirs, colluded and indulged in fabrication of documents. However, the first appellate Court, without considering the available documents and evidences erroneously comes to a conclusion to acquit the second accused. This Court is of the view that the charges against the second accused is clearly proved and therefore he is not entitled to an order of acquittal. Since there is no material found to disprove the charges levelled against A2, the first appellate Court ought not to have acquitted him from the charges. Thus, the first accused and others have executed documents fraudulently and obtained signature in the documents purported to be a power of attorney and created the alleged partition deed and release deed.
21. This Court is of the considered view that the first appellate Court ought not to have acquitted the second accused when there are several material evidence available against him. The appellate Court however held that charges as against A-1, A-3 and A-4 are clearly proved beyond reasonable doubt, there are sufficient incriminating evidences are available against A2. Having regard to the above facts and circumstances, this Court is not inclined to interfere with the judgment of conviction passed by the trial court, which was confirmed by the first appellate Court, which is the subject matter of Criminal Appeal.
22. In the result,
(i) the Criminal Appeal No.492 of 2016 is allowed by setting aside the judgment made in C.A.No.135 of 2014 dated 19.02.2016 on the file of the learned VII Additional Judge, City Civil Court, Chennai and by confirming the judgment made in CC.No.4274 of 2013 on the file of II Metropolitan Magistrate, Egmore, Chennai.
G.CHOCKALINGAM.J., dpq
(ii) The trial Court is directed to take steps to secure the second accused and send him to prison for suffering the sentence awarded by the trial Court.
(iii) the Criminal Revision Nos.382 and 384 of 2016 are dismissed confirming the judgment passed by the Courts below.
10.02.2017 Internet : Yes/No Internet : Yes/No dpq To
1. The VIII Additional City Civil Court, Chennai
2. The II Metropolitan Magistrate, Egmore, Chennai.
Pre Delivery Common Judgment in Crl.A.No.492 of 2016 and Crl.R.C.Nos.382 & & 384 of 2016 http://www.judis.nic.in