Kutubudeen and ors. Vs. State of Rajasthan - Court Judgment

Excerpt:
- - 114/93 was registered on 6.8.93. during investigation, it was also found that the forged entries were made in the lottery register without there being any entry in the register of advisory committee as well as in the inward register of the applications. thus, it was revealed that forged certificates relating to photos and stamps were entered in the order sheets whereby the loss was caused to the state exchequer and accordingly, six persons were charge-sheeted including the four appellants as well as phusa ram and mohd. 3. while assailing the judgment of the learned trial judge, it has been argued by the learned counsel in both the appeals that the department has failed to establish any act of the accused in making forgery in the relevant register. they all applied well in time i. this situation finds favour with the argument of the learned counsel for the appellants that there were several registers kept at various places and necessary entries were made therein, which the prosecution has failed to produce. in the cross examination, he has stated that if there are certain deficiencies in files like photo, certificate of bonafide resident etc.deo narayan thanvi, j.1. these are the two appeals filed by the above four accused appellants against the judgment of learned sessions judge, anti corruption act cases, bikaner dated 5.12.2000 whereby he has convicted and sentenced the accused appellants as under:under section 420 r/w 120 ipc : one year's r.i. & a fine of rs. 1000/-under section 467 ipc : one year's r.i. & a fine of rs. 1000/-under section 468 ipc : one year's r.l. & a fine of rs. 1000/-under section 471 ipc : one year's r.i. & a fine of rs. 1000/-under section 13(1)(d)r/w section 13(2), p.c. act. : one year's r.i. & a fine of rs. 1000/-all the substantive sentences were ordered to run concurrently and in default of payment of each amount of fine, accused appellants were further required to undergo three months' r.i. on each count.2. facts leading to these appeals are that on 4.4.1992 when the trap in the house of accused appellant moola ram, ras, was conducted by the a.c.d. department in case no. 45/92 then certain documents relating to the lottery register for the year 1991 of villages ramda, pugal, jhudkiya and jodhasar and one register of advisory committee of pugal and certain files relating to allotment of land in the canal area were seized. from this record, it was revealed that on 24.9.90, the advisory committee made certain recommendations for allotment of land. the advisory committee was constituted under the rajasthan colonisation (allotment and sale of govt. land in the indira gandhi canal colony area) rules, 1975, hereinafter referred to as 'the rules'. it was found that the appellants received from 30.9.88 to 31.10.88 were-to be considered for allotment as per rule 11 of the rules. allotments were also made in pursuance to the recommendations of the advisory committee and necessary entries were made by pratap singh in the said registered after opening lotteries. it was further revealed that in the said register of advisory committee, 138 persons from pugal, 2 persons from jhudkiya, 80 persons from ramda and 82 persons from jodhasar were eligible for allotment but in the lottery register, more persons were found to have been allotted the land whose applications were neither placed before the advisory committee nor their applications were received prior to 31.10.88. in all, 61 allotments were made by making forged entries. upon this, the fir no. 114/93 was registered on 6.8.93. during investigation, it was also found that the forged entries were made in the lottery register without there being any entry in the register of advisory committee as well as in the inward register of the applications. the photos were attested after later data of applications, but they were shown to have been berified on the same day on 24.9.90 when allotments were made by naib tehsildar kutubudeen. moola ram was assistant colonisation commissioner during the relevant period. thus, it was revealed that forged certificates relating to photos and stamps were entered in the order sheets whereby the loss was caused to the state exchequer and accordingly, six persons were charge-sheeted including the four appellants as well as phusa ram and mohd. yunus, after obtaining necessary sanction from the state government. after hearjng the arguments on charges, mohd. yunus and phusa ram were discharged and rest of the four accused i.e. present appellants were charged under sections 420 read with 120-b, 467, 468 and 471 ipc and also under section 13(1)(d) read with section 13(2) of the prevention of corruption act, 1988,(hereinafter referred to as 'the act'), to which they pleaded not guilty. the prosecution examined 23 witnesses. statements of the accused were recorded under section 313 cr.p.c. they led no defence. after hearing the arguments, the learned trial judge convicted and sentenced the accused appellants as above.3. while assailing the judgment of the learned trial judge, it has been argued by the learned counsel in both the appeals that the department has failed to establish any act of the accused in making forgery in the relevant register. the registers have been proved by the agriculturists who neither made entries in the said registers nor they were conversant with the proceedings of allotment. they all applied well in time i.e. prior to 31.10.88. their allotment was valid as per the statements of the members of the advisory committee and the lotteries opened in pursuance thereof. learned counsel for the appellants further submitted that even if there is a procedural irregularity regarding receipt of the photos, stamps and other ancillary documents necessary for the purpose of allotment, it can be presented later on and a quasi judicial act of allotment cannot be questioned in a criminal court so as to hold the quasi judicial authority guilty of forgery. learned counsel further submitted that the state government has also now regularized those allotments which were made on 24.9.90. they have also placed the copy of the notification of the state government bearing no. 43(51) raj./up/96 dated 19.5.2006 which has not been countered by the learned public prosecutor. according to the learned counsel, the agriculturists who applied for allotment of land, were having no land and they have categorically stated that no illegal gratification was paid by them to any of the allotting authorities but simply on the basis of not finding the names of the allottees in the inward register (article 2) and the register of advisory committee (article 3), the learned trial judge has convicted the accused appellants, whereas their names are appearing in the lottery registers, exs. article 30 to 33.4. per contra the learned public prosecutor has supported the judgment of the learned trial court and submitted that there were no names of the agriculturists in the inward register (article 2) but despite that, the allotments have been made.5. during the course of arguments, inward register (article 2) was looked into which neither bears the name of the officer nor there are signatures of any one as to who is the author of the register. the entries in this register are from serial no. 1 to 3067 but certain serial numbers in the applications of agriculturists were of later numbers for which the learned public prosecutor was given several opportunities to place on record any such documents, whereby it can be revealed whether there is any entry of applications filed by the agriculturists in the inward register (article-2) for allotment. today, the learned public prosecutor brought to the notice of the court on the basis of enquiry made from tehsildar, who is also present in the court that he cannot say as to which office the register (article 2) belongs, except that there was seal of the office of the colonisation tehsil, pugal. he has also brought certain registers of the aforesaid period but they are not relevant for the purpose of this case, therefore, the arguments were confined to the available record of the file. as in the absence of additional record available with the colonisation department, it was not possible for this court to exercise the powers under section 391 cr.p.c. for taking further evidence in the matter.6. having re-appreciated the evidence on record, it can be said at the very outset that as per the charges against the accused appellants, the applications were to be filed prior to 31.10.88 and they were not entered in the inward register. the learned trial judge has also observed so but this finding of the learned trial judge is contrary to the record. i have examined the inward register (article-2). firstly, it should have been proved by the person, who made entries in this register but the witness in this regard has not been examined. secondly, it is not clear that this register is belonging to which particular office. thirdly, there are no entries in the register after serial no. 3067. this register has been marked as exhibit article 2 on the basis of the statements of the agriculturists, who have been examined as pw. 1 to pw. 17, particularly pw. 1 om prakash, who filed application in the office of the assistant colonisation officer for allotment, which is article-1, has stated that at serial no. 1250 of the register, the name of hadmaan ram son of dana ram jat has been entered, which is not his name. according to him, he moved an application on 28.10.88. almost similar are the statements of pw.l to pw.17, who have stated that they moved the applications prior to 31.10.88. they have no where said that they have paid any illegal gratification to any of the authority of the colonization department. upon examining inward register (article 2) with regard to these 17 persons who have been examined as pw.l to pw. 17, it appears that the applications of vijay singh (pw. 8) at serial no. 19 dated 14.10.88, bhanwar singh (rw. 9) at serial no. 240 dated 17.10.88, prem singh (pw. 12) at serial no. 2679 dated 31.10.88, bhoor singh (pw. 14) at serial no. 167 dated 15.10.88 and of banney singh (pw. 16) at serial no. 1300 dated 29.10.88 are available in the file as articles 10, 11, 14, 16 and 18 respectively and their serial numbers are tallying in the inward register (article-2). the applications of bhanwar lai (pw. 5) at serial no. 6513 dated 31.10.88, durjan singh (pw. 7) at serial no. 6338 dated 25.10.88, mahendra ram (pw. 10) at serial no. 3161 dated 17.10.88, jagmal singh (pw. 15) at serial no. 6361 dated 25.10.88 and of samer singh (pw. 17) at serial no. 6365 dated 25.10.88, are not entered in the inward register anywhere because this register, ex. article 2 itself, is up to serial no. 3067. it shows that the prosecution has not produced or seized the registers, in which applications received after serial no. 3067, were entered. of-course seven applications of om prakash (pw. 1) being no. 1250 dated 28.10.88, ganpat ram (pw. 2) being no. 1670 dated 29.10.88, laxman ram (pw. 3) being no. 1210 dated 28.10.88, mana ram (pw. 4) being no. 598 dated 26.10.88, rati ram (pw. 6) being no. 1683 dated 29.10.88, sri ram (pw. 11) being no. 65 dated 18.10.88 and of bheek singh (pw. 13) being no. 2600 dated 31.10.88 are not on the serial numbers, as pointed out in the inward register, article-2, but they are in the different names. it is strange to note that when five applications out of 17 have been found in the register and of five applications, there is no serial number entry in the register, article 2, in the absence of seizure of inward register of later serial numbers from 3067 onwards, then where these applications have been entered. this situation finds favour with the argument of the learned counsel for the appellants that there were several registers kept at various places and necessary entries were made therein, which the prosecution has failed to produce. in this regard, if i turn to the statements of the prosecution witnesses, most important of which is pw 20 pratap singh, who has said that the files, as referred-to above, were not placed before him, therefore, he did not make any entry of it in the register of advisory committee (article 3). when he was cross examined, he has specifically stated that this register of advisory committee pertains to pugal. the registers of khajuwala and chhatargarh were not placed before him. he has further stated that on the date of allotment by lottery i.e. 24.9.90, there were several agriculturists, who were demanding that their applications have not been placed. the next important witness in this regard is abdul mugni (pw. 22), who was asstt. colonisation commissioner at the relevant time. he has not said anything about the receipt of these applications prior to 31.10.88 but he has stated in the cross examination that on account of large gattering, separate registers are prepared and thereafter, a common register is prepared but here in the present case, which is the common register and which one is the separate, has not been brought on record. the investigating officer jagdish chandra (pw. 23) has of course said that the names of the allottees, who did not file the applications, were entered in the lottery register without recommendation of the advisory committee. when he was asked specifically the question about inward register (article 2), he said that he cannot say as to which office, this register belongs to, the last entry of which is 3067. he said that he did not seize this register and did not think it proper to take another register after section no. 3067. when he was asked about the writing in article 2 and article 3, he said that he cannot identify the writing. this is, in all, the evidence led by the prosecution on the basis of which it is not established that the applicants pw. 1 to pw. 17 did not file their applications for allotment before 31.10.1988. on the contrary, it is proved from the evidence of applicants/agriculturists, which is a primary evidence, that they moved the applications prior to this date. therefore, the very foundation of the case on which the finding of the learned trial judge is based that the agriculturists did not move the application, itself is incorrect.7. next comes the register of the advisory committee, which is article 3. it is true that the names of the excess 61 allottees including the 17 agriculturists, pw. 1 to pw. 17, who have been examined by the court, are not there in the register of the advisory committee but their names are available in the lottery register, articles 30 to 33, which is of the same date i.e. 24.9.90. this register has been marked exhibit from the testimony of pw. 1 om prakash but these entries have been proved by pratap singh (pw. 20). he has said that the applications of above 17 agriculturists were not placed before him, but he has stated that this register pertains to pugal and the registers of khajuwala and chhatargarh were not placed before him. in examination in chief, he has stated that he went to pugal under the order of moola ram, asstt. colonisation commissioner. according to him, the formalities of photos, stamps et. on files, article 20 to 29, article 7 and article 16 show that report of the patwari, photos and its stamps have been affixed after filing of applications. in the cross examination, he has stated that if there are certain deficiencies in files like photo, certificate of bonafide resident etc., then order for issuing allotment is made but the same is handed over to the agriculturists later on. in the last, he stated that he did not notice any illegality in these allotments. the members of the advisory committee, who have been examined, are shiv lai (pw. 18) and shiv kumar (pw. 19) but they are hostile witnesses, as they have stated that they received certain files later-on in a bundle and made allotments.8. the evidence of shambhu singh, dy. s.p. (pw. 21) and of jagdish chandra (pw. 23) is not relevant for the purpose of this allotment. the last witness of the prosecution in the matter of this allotment is abdul mugni (pw. 22), who was asstt. colonisation commissioner, chittorgarh. he has stated that if any allotment is made by the mode other than the recommendation of the advisory committee, then it is not valid. he has also stated that if any formality remains, it can be completed at a later stage. thus, from the above evidence, it appears that the names of the 61 allottees including the 17 agriculturists, who have been examined as pw. 1 to 17, were not there is the register of advisory committee which is of 24.9.90 but their entries have been made in the register of lottery, which is arts. 30 to 33, which have been proved.9. now the question comes for consideration is that when the agriculturists moved the applications prior to 31.10.88 and their applications were not placed before the advisory committee on 24.9.90 and there is evidence to this effect that there being hue and cry for not placing the applications before the advisory committee on 24.9.90 and a separate bundle was found and their applications were considered and allotments were made by lottery vide articles 30 to 33, whether it can be said that these allotments were made with any criminal intention? in this regard, the state government has framed the rajasthan colonisation (allotment and sale of govt. land in the indira gandhi canal colony area) rules, 1975, as above, wherein a procedure has been prescribed for allotment of land in the canal area. u/r. 8 of the rules, the allotting authority shall prepare villagewise/chakwise lists in form i of all government land available for allotment. under rule 9 of the rules, a public notice is issued and under rule 10, the application are submitted. the application shall also contain true and correct factual information with regard to permanent place of residence, whether as a landless person, full particulars of the land transferred by him or his family member by way of sale, gift or otherwise on or after 15.10.1955 or such other information as is required in form iii. rule 11 of the rules says that on receipt of an application, the allotting authority shall immediately register it in a register to be maintained in his office in form iv and shall issue a receipt to the applicant in form v and thereafter under sub-rule (2) of rule 11, he shall scrutinise the application and verify them after enquiry. in the present case, there is no evidence to the effect that the applications were registered in form iv and any receipt was issued to the applicants in form v. the investigating agency has neither referred about this violation of the rules nor made any efforts to collect these registers. on the contrary, unnamed and unsigned inward register (article 2) has been submitted with the challan, from where it cannot be gathered as to who is the author of this register. the title of this register has been given as 'misal bund register'. it is also true that the formalities as required under sub-rule (3) of rule 10 of the rules were not completed by the applicants and enquiry as required under sub-rule (2) of rule 11 of the rules was also not made by the allotting authority but this procedural lapses is a subject of departmental proceedings against the ailing authority. in this regard, the learned counsel for the appellants have produced one notification of the state government bearing no. 43(51) raj./up/96 dated 19.5.06, which has been issued in pursuance to the letter of the commissioner, colonisation deptt. bikaner dated 22.10.2005, wherein it is categorically stated that the irregular allotments made in tehsil pugal, district bikaner on 24.9.90 may be regularized on fulfilling condition as laid down in the circular. learned counsel submits that these formalities have been complied with and the allotments have been regularized. this fact has not been controverted by the learned public prosecutor.10. when the state government in exercise of its administrative powers, has regularized those allotments, then confirming the conviction and sentence in appeal by this court on the basts of irregularities, which have not been even brought on record by the investigating or prosecuting agency, it will not be justiciable by the appellants court to confirm the conviction and sentence. it is for the department to take necessary action, if it feels that these irregularities have resulted tn causing loss to the state exchequer or it amounts to misconduct. there is not an lota of evidence before this court that any forgery was made by the present accused appellants tn the government record or for the purpose of favouring anybody or these forged documents were used as genuine in conspiracy with the other co-accused. it is also not proved that they received any illegal gratification to pursuance to these allotments and on the contrary, the agriculturists, who have been examined by the prosecution viz; pw. 1 to 17, have not said that they have paid anything to anyone in the matter of allotment.11. in view of this, the finding of guilt arrived at by the learned trial judge is based on the conjectures and surmises and without appreciating the record in its proper perspective. under these circumstances, this conviction cannot be sustained.12. consequently, both the appeals are allowed. the conviction and sentences, as referred-to above, passed by the sessions judge, prevention of corruption act, bikaner vide his judgment dt. 5.12.2000 against the accused appellants for the offences under sections 420 r/w 120-b, 467, 468 & 471 ipc and section 13(1)(d) r/w 13(2) of the act, are set aside. since they are on bail, their bail bonds stand cancelled.