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Judgment
Mr. Justice V. Jagannathan
The Petitioners who were A-2, A-3 and A-5 in the trial court are; aggrieved by their conviction u/s 420 of the IPC and consequent sentence imposed by the trial court and the lower appellate court, confirming the trial court judgment. Hence, the present revision petition by the said accused. It has to be mentioned at this stage itself that, out of the five accused who were put on trial. A-1 and A-4 died during the pendency of the criminal case.
The case of the prosecution in short is that, the five accused persons who were put on trial gave applications before the Tahsildar, Yelandur for grant, of land situated in Sy.No. 8 of K. Devarahalli village and in the said applications the accused had mentioned that, they are landless agricultural labourers and therefore they be granted the land. The applications were processed and land was allotted to them to an extent of 4 acres to each of the accused and thereafter the accused converted the said land into a stone quarry and excavated precious black granite without any valid permission from the concerned authorities and in violation of the express conditions of the Darkhasth grant. Therefore, the accused were charged with the commission of the offence punishable u/s 120-B, 420 r/w 34 of IPC.
The complaint was filed by the Tahsildar which led to the investigation and filing of the charge sheet.
At the trial, the prosecution examined 13 witnesses and perused 50 documents and on behalf of accused, Ex.Dl was marked after recording the statement of the accused u/s 313 and the accused took no pains to place defence evidence. The learned trial judge, after evidence appreciation, convicted the Petitioners herein and sentenced them to one, year S.I and to pay Rs. 1,000/- fine and in default. to undergo S.I for one month for the offence u/s 420 of the IPC.
I have heard the learned Counsel Sri. V.Y. Kumar for the Petitioners and also Sri. Sriuivasa Reddy learned Government Pleader for the Respondent-State.
Submission of the learned Counsel Sri. V.Y. Kumar lor the Petitioners is that, the entire finding of the trial court is contrary to law and also the trial court committed a serious mistake in putting the entire burden on the Petitioners to prove their case by invoking section 106 of the Evidence Act. Secondly, the trial court took note of the observations made by this Court while disposing of the criminal petition filed by the accused for discharge and the trial court virtually held that, following the findings recorded by the High Court, the accused are estopped from contending that the offence u/s 420 of IPC is not attracted against them. As such, the entire procedure followed by the trial court is contrary to law and thus the conviction and sentence passed is liable to be set aside on this ground alone.
It is further contended by the learned Counsel for the Petitioners that, the evidence on record would go to show that the application for grant of land was a printed form and except the signature of the respective Petitioners, all. columns in the said applications were filled up by one and the same person and the Petitioners were unaware of the contents of the said application forms. It is their case that their signatures were obtained on blank forms and later on the contents were filled up by one and the same official of the office of the Tahsildar. In this connection, learned Counsel referred to the evidence of PW-6 who has stated that he never filled up the contents of the forms at Ex.P1, P2, P3, P4, P6, P8, P10 and, P11 was filled up by P.W. 3 based on his personal opinion. Under the said circumstances, the trial court could not have convicted the Petitioners for the offence of cheating.
It is also contended by the learned Counsel for the Petitioners that the trial court ha:- come to a definite conclusion that the only offence made out against the Petitioners is one of giving false information to a public servant and in that event, section 420 of IPC does not get attracted and that apart, having regard to the sentence prescribed for the offence u/s 182 of the IPC, the cognizance taken is also barred by limitation Having regard to section 468-C of Code of Criminal Procedure For this reason also, the conviction of the Petitioners is bad in law.
The next, submission put forward is that the Petitioners having granted mining license, they had requested the village accountant to give them some place to dump their waste material, but the revenue authorities instead took the signature on the blank forms and made it appear that the Petitioners had sought land being granted to them. Therefore, the mistake lies not on the accused, taut on the revenue authorities.
In this connection, learned Counsel for the Petitioners referred to the observations made by the learned Judge of the lower appellate court at Para. 28 of his judgment wherein the learned Judge had come heavily on the conduct of the revenue inspector P.W. 3 and the village accountant and has observed that the. lands in question had already been granted to the Forest Department and therefore the revenue authorities could not have granted the said land to the Petitioners. For ail these reasons and also relying on the Apex Court decision reported in M. Krishna Reddy Vs. State Deupty Superintendent of Police, Hyderabad, , learned Counsel for the Petitioners sought for the revision petition being allowed by setting aside the judgment of conviction and sentence.
On the other hand,. submission of the learned Counsel for the Respondent State is that, the application forms bear the signature of the accused and it cannot be said that they were unaware of the contents of the applications. Moreover, the Petitioners are residing at Bangalore but had given their address as that of Chamarajanagar. which is also incorrect. He also referred to the documents at Ex.P15 to 24 which are the challans having paid the amounts and therefore contended that the Petitioners were fully aware of the purpose for which they had applied for grant of land Learned Government Pleader also referred to Ex.P39, the income tax form which revealed that the accused persons were partners of a mining company. The accused also had not given any explanation in their 313 statement and had suppressed the real facts and sought for grant of land to them. The Tahsildar therefore granted the lands based on their application forms. Under these circumstances, the judgment of the trial court does not call for any interference is the submission made by the learned Government Pleader.
Having thus heard both sides, whether the judgment of conviction and sentence passed by the trial court can be held to be sustainable in law.
The prosecution has. examined 13 witnesses and produced 50 documents to prove its case. The evidence of P.W. 1 Nanjappa is to the effect that, while he was working as Tahsildar during his period from April to October 1983, the accused had been granted Government land in Sy. No. 6 of Devanahalli village and each accused was given 4 acres of land for the purpose of cultivation. It is also his evidence that the accused had submitted the applications for grant of land by stating that they are agricultural labourers and their applications were examined and the report of the revenue inspector was sought and thereafter after the receipt of the report of the revenue inspector, steps were taken in accordance with law. Applications filed by the respective accused persons have also been marked as Ex.P2 to P10 and P11 is the report of the revenue inspector. In Ex.P11 the revenue inspector has recommended that the accused are landless persons and it is on that basis the grant was made as per Ex.P14 and Ex.P15 to P19 are the undertakings given by the accused.
P.W. 2 who was the, Tahsildar of Yelandujr Taluk during 1984 to 1987 has deposed to the effect that the lands granted to the accused belonged to the Forest Department and thus the grant made to the accused was illegal This witness has also stated that the accused persons were not landless agricultural labourers, but they belonged to different places and not Chamarajnagara,
P.W. 3 who was also the Revenue Inspector during the relevant period, has deposed in his evidence about the application filed by the accused and as per Exs.P2, P4, P8 and P10 which are the applications for grant of land filed by the accused persons. The witness has stated that he came to know that the accused were quarrying granite from the said lands.
P.W. 4, the Revenue Surveyor speaks of having surveyed the land and giving block numbers 6/34 and 6/38 and submitting a report along with the sketch to the Tahsildar. P.W. 5 Ramaradhya, the village accountant has deposed in his evidence that Sy. No. 6 measures more than 600 acres and the portion of the said land was granted to the accused by P.W. 1.
P.W. 7 Bangaraswamy. the Revenue Inspector has deposed that Sy. No. 6 of Devarahalll village was within his jurisdiction and the said land was granted to the accused and he found the accused using the land, for quarrying work.
P.W. 8 Shankar is another village accountant has stated that Ex.P11 has signed by him and, it was sent by P.W. 3 and alter the land was granted, the accused used the said land for quarrying work. The witness has deposed in the cross-examination that when he visited the spot, the quarrying work was in progress. He also found that only 25 acres was fit for cultivation. It is also in his evidence that one Gurulinga Naika was the village accountant of Chamarajanagar town and Exs.P4, P6, P8 and P10 were filled up by the above said Gurulinga Naika and the contents of Ex.P11 are the personal opinion of P.W. 3.
The trial court in the light of the above evidence on record as well as the documents produced, however put the burden on the accused by referring to Section 106 of the Evidence Act on the footing that the accused were having a special knowledge of the fact and therefore, it was for them to prove the said fact.
Submission of learned Counsel for the Petitioners, is that the burden of proving the existence of any fact, is on the person who is bound to prove the said fact and thus, it was the prosecution which ought to have prove the facts, as it was the case of the prosecution that the accused had cheated the Government by securing the land, though they were not the landless persons or agricultural labourers. Therefore, the finding of the trial court by putting the burden on the accused is erroneous.
The said submission of learned Counsel for the Petitioners has considerable force, because it is for the prosecution to establish its case and not; for the accused to prove the negative,
As far as the trial court observing at para-23 of its judgment that the accused are estopped from contending that the allegations made against them do not attract Section 420 of IPC, in view of the finding of this Court is concerned, learned trial Judge committed serious error in making the said observations, because this Court while disposing of the criminal revision petition filed challenging the order of dismissal of discharge the cahow of the accused had made the observations that there is a case for trial against the accused persons. The trial court therefore could not have considered the said observations as indicating that this Court: has recorded a finding with regard to the offence charged against the accused. Thus, the entire observations at para-23 of the trial court''s judgment is totally erroneous and the trial court could not have come to the conclusion with regard to the offence u/s 420 of IPC being made out merely on the basis of the observations made by this Court while disposing of the criminal revision petition: filed by the Petitioners.
As far as the contention put forward by learned Counsel for the Petitioners that the Petitioners had sought some land to dump their waste material is concerned, although some of the witnesses examined by the prosecution speaks to the fact of the Petitioners being engaging business of granite, yet, no suggestion has been put to the prosecution witnesses to the effect that the Petitioners signed in the application forms only for the purpose of seeking some land for the purpose of dumping their waste material. No defence was also placed to support the aforesaid defence theory that is now put forward by learned Counsel for the Petitioners.
At the same time, it has to be mention that the lower appellate court has observed at para-28 of its judgment that the Tahsildar (PW-1), the Revenue Inspector (PW-3) and the village accountant were ail responsible for creating false documents and though they were aware of the land in question being given to the forest department, these officials had created the documents to help the accused, and therefore, the Deputy Commissioner, Chamarajariagar was directed to take a suitable action and also to file criminal proceedings against those officials for creating false documents just to defraud the Government.
In view of the aforesaid observations made by the lower appellate court and all the application forms having been filled up by one person namely Gurulinga Naika, according to P.W. 6 the fact still remains that the Petitioners herein also had put their signatures to the application forms and in addition, had also executed a bond on the stamp paper. The further fact that is established by the prosecution is that the accused persons who were granted lands have paid the amount by submitting the challens Exs.P16 to P24. The prosecution witnesses who are mostly the revenue officials have also deposed in their evidence that they visited the spot and they found quarrying of the work being carried on.
Considering all these aspects of the matter and the trial court having wrongly put the burden on the accused by invoking Section 106 of the Indian Evidence Act and further having committed the mistake of considering the observations made by this Court as if they are all findings in respect of the charge levelled against the accused persons, the over all material on record therefore inclines this Court to remit the case to the trial court to hear the arguments afresh and thereafter pass its orders in accordance with law as this would be the proper course to be adopted to meet the ends of justice having regard to the nature of the evidence on record.
For the above reasons, the judgment of conviction and sentence passed against the accused Petitioners is set aside and the matter stands remitted to the trial court to hear the arguments of both sides afresh and then pass orders in accordance with law within three months from the date of receipt of a copy of this order. It is also made dear that the trial court shall not be influenced by any of the observations made herein above and shall deal with the matter independently of the aforesaid observations.
Petition therefore stands disposed of accordingly.