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Girasia Lakhubha Pathubha Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1966CriLJ727; (1966)GLR700
AppellantGirasia Lakhubha Pathubha
RespondentState of Gujarat
Excerpt:
- .....no. 2 are relatives and they own jointly certain lands. in order to take a loan from the land mortgage bank for purchasing a tractor a mortgage document was executed. it was properly executed by accused nos. 1 and 2. but as regards the complaint natasha, one bhikhubha jalamsang signed for the complainant. bhikhubha jalamsang admits that he did so, but according to him he did it at the instance of the complainant and on behalf of the complainant. but this fact is denied by the complainant. the document was produced before the sub-registrar by accused no, 1, and after the necessary compliance with the procedure it was registered. on the day after the registration, the complainant gave an application to the land mortgage bank, stating that his signature on the document had been.....
Judgment:

V.B. Raju, J.

1. These appeals which arise out of the same judgment of conviction, will be disposed of by a common judgment.

2. The Additional Sessions Judge, Gondal, convicted Lakhubha Pathubha, Rasubha Ajaji, Bho vansang Hanubha Manubhai Pathubha and Revtubha Pathubha, accused Nos. 1 to 6 respectively, under Sections (1) 417/34, (2) 420/34, (3) 465, 467 and 468 read with Section 34 and (4)471 read with Sub-section 465, 467, 468 read with Section 34,1. P. Code. The I facts are that the complainant, accused No. 1 and accused No. 2 are relatives and they own jointly certain lands. In order to take a loan from the Land Mortgage Bank for purchasing a tractor a mortgage document was executed. It was properly executed by accused Nos. 1 and 2. But as regards the complaint Natasha, one Bhikhubha Jalamsang signed for the complainant. Bhikhubha Jalamsang admits that he did so, but according to him he did it at the instance of the complainant and on behalf of the complainant. But this fact is denied by the complainant. The document was produced before the Sub-Registrar by accused No, 1, and after the necessary compliance with the procedure It was registered. On the day after the registration, the complainant gave an application to the Land Mortgage Bank, stating that his signature on the document had been forged.

3. Curiously enough, Bhikhubha Jalamsang has not been prosecuted for forgery, but accused No. 1 and 2 have been prosecuted and charged under Sections 417, 420, 465, 467, 468, I. P. Code read with Section 34 I. P. Code and Section 471 read with Sections 465, 467 and 468 read with Section 34,I. P. Code.

4. Section 34, I. P. Code, can be applied when a criminal act is committed by several persons. There can be a criminal act, which cannot be committed by several persons. If in such a case the criminal act is done by several persons, it amounts to a repetition of the criminal act. For example, a currency note can be forged by several persons, each doing part of the forgery. In such a case, Section 34,I. P. Code, cannot be applied. But each of the persons taking part in the forgery would be guilty of the substantive offence of forgery. In the present case, however, mere forgery as such is. not a criminal act, which can be done by several persons, This is not a case for applying Section 34, Indian Penal Code. It may be that in such case one may abet forgery by the other. Curiously enough the person said to have committed the forgery nags not been prosecuted and convicted. Bhikhubha Jalamsang admits that he made a signature for and on behalf of Natasha, the complainant.

5. Regarding the charge under Section 471, I. P. Code, before a person can be convicted for using a forged document as genuine knowing it to be a forged one, it must be shown that he used the document. According to the prosecution, the user of the document is by production of the same before the Land Mortgage Bank in order to obtain a loan. According to the prosecution, it was accused No. 1 who presented it. There is no evidence to show that accused No. 1 presented the mortgage deed, Ex. 6, before the Land Mortgage Bank. Mithabhai Jiwanbhai, the Branch Manager of the Land Mortgage Bank has deposed as follows:

I produce the application for loan presented by accused sitting in the dock only, accused 1. It is Ex. 16. Ex. 16 is the application for loan. He does not say that accused No. 1 presented the application for loan before him. He merely says that the application for loan presented by accused No, 1 is being produced. In a criminal offence, evidence must be precise. A passive voice should cot be used. If the passive voice is used, the words 'by so and so' must be added. In absence of the words 'by so and so' it cannot be said that the act was done by a particular person. Evidence must be precise. In Queen-Empress v Babu Lal, ILR6 All 509 at p. 549, a Full Bench consisting of 5 Judges, has pointed out that a witness should not be allowed to State 'they said this', or 'they said that' or 'the prisoner then said' when the two persons are being tried. There must be preciseness in giving evidence and recording evidence.

6. Regarding the user and production of the mortgage deed before the Land Mortgage Bank, there is no evidence. Witness Khimji, who was in charge of the Branch Manager at the relevant time, has deposed as follows:

After I made this inquiry from the signatories, the accused No. I Lakhubha told me that all of them had rightly signed on this document. I then asked clerk also if the signatures were properly taken and he said yes ....On the next day of the execution of this document one Natasha came arid presented an application Ex 3. I then knew that he is Natasha Ex, 3 application shown to me is the same which was presented before me by aforesaid Natubha.... On 18-6 62 when this document Ex. 6 was presented before me this Natubha was not amongst those persons who had told me that they had put their signatures.

But he does not say: who presented Ex. 16 before the Bank. There is, therefore, no evidence to show that accused No. 1 presented the mortgage deed before the Bank.

7. Regarding the offence under Section 420, Penal Code, the charge is that accused No, 1 made a representation to the Bank Authorities regarding the signature of Natubha. There is no evidence on the point. Therefore, the conviction under Section 420, Penal Code must be set aside.

8. But there is evidence that accused No. 1 did produce the document before the Sub-Registrar. There is evidence of the Sub-Registrar on the point. Accused No. 1 knew that the signature of Natubha was not that of Natubha and simply presented the document for registration. Therefore the necessary means real can be inferred. The conviction of accused No. 1 under Section 471, Penal Code, for using a forged document before the Sub-Registrar can therefore be confirmed. But his convictions under other sections are set aside.

9. Regarding the sentence, however, this is a case where accused No. 1 did mortgage his own land. It appears that the land which was mortgaged was-joint with accused Nos. 1, 2 and the complainant. It may also be remembered that Bhikhubha Jalamsang has not been prosecuted and convicted. Under these circumstances, the sentence passed upon him under Section 471, Penal Code, is altered to that of a fine of Rs. 500/- (five hundred) in default rigorous imprisonment for three months.

10. The convictions and sentences passed upon the other appellants are set aside, because this is not a case where Section 34, Penal Code should be applied.


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