2019 Supreme(Kar) 1653

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
H.P. SANDESH, J.
Vasant Madhav W/o Kristachaya Athani - Appellant
Versus
Shri. Pramod S/o Gururaj Athani - Respondent
Criminal Appeal No.2831 of 2010
Decided On : 26-04-2019

Headnote:

Evidence Act - Section 73 – Indian Penal Code - Sections 465, 418, 120(b) and 511 r/w 34 – Criminal Procedure Code - Section 378(4) – Acquittal of order - Power of attorney - Trial Court - Whether those signatures are forged or not or those signatures are of PW1 and PW4 since they have disputed and accused persons have contended that same belongs to PW1 and PW4 with aid of experts or evidence of persons conversant with disputed signature and same has not been done - Whether said documents was concocted or not and that has not been considered by trial Court in proper perspective and very conclusion itself is wrong conclusion - Whether Court below has to re appreciate evidence available before Court since this Court is First Appellate Court and having ample powers to reconsider and re appreciate evidence available on record both oral and documentary evidence and also question of law - Whether Court below has committed an error in acquitting accused persons - Whether document is registered or unregistered is immaterial - Complainant has filed complaint before Court below stating that he is resident and he is joint owner of house property of Ward and CTS of Ward of Town - All these properties have been submerged under Upper Krishna project - Accused Nos.1 to 3 are sons of eldest brother of complainant - Submerged properties are jointly owned by complainant and father of Accused Nos.1 to 3 - Complainant have executed a power of attorney in favor of accused to facilitate him to represent complainant and two others before Court to receive compensation amount - Subsequently accused No.1 started to behave in different way and his attitude towards complainant and two others was observed to be suspicious and hence they got cancel led power of attorney and issued notice to accused - Inspire of cancellation of power of attorney accused No.1 cheated complainant to cause loss to him by creating false documents and other documents connived with accused No.1 conspired to knock of property – Held, It is important to note that when complainant PWs-1 and 4 have categorically says that those documents are forged and signatures are not belong to them and when accused persons throughout in their cross examination denied said al legation and contends that those documents are executed by PWs.1 and 4 complainant ought to have been sent said documents for handwriting experts and same has not been done - Accused persons also taken a specific defense that those signatures belong to complainant and PW-4 and when such defense is taken burden is on complainant to prove that those signatures are forged signatures and in order to prove said contention only course open to complainant is to send documents to hand writing experts and same has not been done - Further important to note that no doubt Court can compare signatures admitted signatures and disputed signatures exercising powers under Section 73 of Evidence Act and in a criminal case that too when heinous offence of forgery has been alleged against accused person Court only by comparing signatures invoking Section 73 of Evidence Act cannot act as a expert and comes to a conclusion that signatures are forged signatures - In case on hand also when there is a dispute with regard to signatures complainant ought to have sent documents to ascertain whether those signatures are forged or not or those signatures are of PW1 and PW4 since they have disputed and accused persons have contended that same belongs to PW1 and PW4 with aid of experts or evidence of persons conversant with disputed signature and same has not been done - In absence of scientific material before Court with regard to forgery Court cannot comes to conclusion that signatures are forged signatures and there is no any authenticated and scientific evidence before Court to comes to a conclusion that those signatures are forged signatures – Hence court of opinion that Court below has not committed an error in acquitting persons in absence of scientific material evidence before Court that those disputed signatures are forged signatures - Court have already pointed out that other conclusion arrived by Court below that document is not registered and same is inadmissible is erroneous approach of trial Court – But it is specifically pleaded in complaint as well as in evidence that signatures are forged – But in one breath complainant says that those signatures are forged at instance of some other persons and anyhow court have already pointed out that accused Nos.1 to 3 have got benefit by producing those documents before authority and they themselves have tendered documents before Authority and same has not been disputed and hence no doubt Court can presume that documents which are disputed came into existence at instance of accused Nos.1 to 3. But no material before Court to show that those signatures are forged signatures - Court have already pointed out that in absence of scientific evidence as well as expert’s evidence that those signatures are forged signatures complainant failed to send documents to hand writing experts and get report from experts to prove fact that those signatures are forged signatures - Hence benefit of doubt goes in favor of accused persons - Hence court do not find any reasons to comes to other conclusion to reverse judgment of Court below - Appeal is dismissed