CHHOTEY LAL Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS is an appeal against the order dated 15.2.1973 R. N. Sinha, Second Temporary Civil & Sessions Judge, Allahabad, convicting appellant Chhotelal under section 420 I. P. C. and sentencing him to two years' R. I. and a fine of Rs. 100.00. The appellant was further convicted under section 471 I.P.C. and sentenced to two years' R. I. The sentences were directed to run concurrently.

(2.) THE prosecution story in brief was as follows :- One Kauleshwar (P. W. 1) resident of village Badriya, Police Station Sarai Khaja in the district of Jaunpur lost his case in the consolidation proceedings from the court of the Dy. Director of Consolidation. He was advised by his counsel. Girja Shanker (P. W. 2). Advocate of Jaunpur to file a writ petition against the order of the Dy. Director of Consolidation in the High Court and obtain a stay order. Kauleshwar (P. W. 1) engaged G. P. Gautam (P. W. 3) as his counsel and the latter filed writ petition No. 3292 of 1964. The stay application was moved along with the writ petition on 17.4.1964. This writ petition along the stay application was dismissed in limine. According to the prosecution story a balance of Rs. 57.00 out of the fee due to G. P. Gautam (P. W. 3) Advocate was to be paid by Kauleshwar, who sent his Samdhi Jagdeo to file a special appeal against the order dismissing the Writ Petition in limine. He also sent the balance of Rs. 57.00 to be paid to G. P. Gautam Jagdeo met G. P. Gautam Advocate on 1.8.1964 and after promising to pay the balance he went to take his meals. On the way, he met Chhoteylal appellant, who gave out that he was the clerk of Lalji Sahai, Advocate and he would get the special appeal allowed and he would also secure the stay order for a sum of Rs. 20.00. It is important to note that the said Jagdeo was giving out himself to be Kauleshwar (P.W. 1). The appellant asked aforesaid Jagdeo to meet him on 6.8.1964. On that date, the appellant delivered a forged stay order Ex. II to aforesaid Jagdeo on charging Rs. 18.00 from the latter. The said Jagdeo took the said order to Jaunpur and presented it before Kauleshwar's counsel Girja Shanker (P. W. 2), who on reading the said order informed Jagdeo that he had been cheated and paper Ex. II was not the stay order at all. The aforesaid Jagdeo then came to High Court on 11.8.1964. The clerk of G. P. Gautam, Advocate asked Jagdeo to meet the latter, but G. P. Gautam told his clerk that Jagdeo had not paid his fee and, therefore, he had no concern with the case. On that very day, Jagdeo saw Chhoteylal appellant. Jagdeo caught hold of the appellant and produced him before, S.B.L. Gaur, Vice-President of the High Court Bar Association in the Library Room. It is said that Chhotelal appellant confessed his mistake in the presence of G. P. Gautam (P. W. 3) Advocate, Kazi Masood Hasan (P.W. 4) and Bankeylal Shukla (P. W. 7). Jagdeo then wrote out a complaint Ex. Ka/2 (1) under the name of Kauleshwar and presented it before the Registrar of the High Court along with the appellant. The appellant was sent to the police station through Suresh Chandra Bhatia (P. W. 5) where the First Information Report (Ext. Ka/3) was presented. The case was investigated and the appellant was challenged.

(3.) FEELING aggrieved the appellant has now come in appeal before me. The appellant has appeared in person. I have heard him as also the learned counsel appearing on behalf of the State. After going through the record I have come to the conclusion that the conviction and sentence imposed upon the appellant cannot be allowed to stand. Kauleshwar (P.W. 1) was the person who had lost his case before the Dy. Director of Consolidation. He hag admitted that the Writ Petition No. 3292 of 1964 filed by him through G. P. Gautam (P. W. 3) Advocate was dismissed by the High Court in limine along with the stay order. He denied to have sent any Jagdeo in connection with his case. He further denied that Jagdeo was his Samdhi. He stated nothing which could connect the appellant with the stay order Ex. II. Jagdeo who was the victim defrauded was not produced in the case. The very foundation on which the entire story was built is missing. As a matter of fact, Kauleshwar (P. W. 1) denied that Jagdeo was his Samdhi. It is, therefore, difficult to understand how a person who was an utter stranger 1o Kauleshwar (P. W. 1) came in connection with his Writ Petition which had already been dismissed without any instructions from Kauleshwar. The entire evidence to connect the appellant with the crime consists of the testimony of four witnesses viz. G. P. Gautam (P.W. 3), Kazi Masood Hasan (P. W. 4) Suresh Chandra Bhatia (P.W. 5) and Bankeylal|Shukla (P.W. 7). Out of the above four witnesses. G. P. Gautam (P. W. 3), Kazi Masood Hasan (P.W. 4) and Bankeylal Shukla (P.W. 7) simply stated that the appellant confessed before them his guilt or admitted his mistake. They did not point out the words alleged to have been uttered by the appellant in order to enable the court to know whether those words alleged to have been uttered by the appellant amount to his confession or his guilt at all. In the absence of those words alleged to have been used by the appellant it cannot be held on the basis of the testimony given by the aforesaid three witnesses that the appellant made any confession at all.