2016 PLP 199 (YLRN)

Ss. 420, 468 & 471

Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document

Appreciation of evidence

Only allegation against accused was that motorcar in question was recovered from his possession; which being suspect was sent to Forensic Science Laboratory, where its chassis number was found tampered

Provisions of S.420, P.P.C. would not be attracted, when there was nothing against accused to the effect that he had cheated any body and dishonestly induced any body to deliver any property, or to make, alter or destroy the whole, or any part of valuable security or sign or seal, or anything capable of being converted into a valuable security

Provisions of S.420, P.P.C., in circumstances, did not attract in the case

No allegation was levelled against accused about cheating by any document

Registration Book of vehicle in question produced by accused had been verified by the Authority concerned, which was found to be correct with engine and chassis number mentioned therein

Police Officer who seized motorcar in question from accused had admitted the same to be correct

Motor Registering Authority's Report did not mention that the vehicle in question was having bogus number of registration

Provisions of S.468, P.P.C., which spoke about forgery of documents, could not be attracted against accused

No allegation was levelled against accused to the effect that he used fraudulently and dishonestly any document as genuine with the knowledge that the same was forged one

No evidence was on record to prove that it was the accused who tampered with chassis number of vehicle in question

Onus to prove tampering was on the prosecution, but prosecution had failed to discharge the same

No provision of law under which courts below had recorded conviction against accused was attracted against accused

Courts below had not appreciated the evidence in its true perspective and reached erroneous conclusion by holding accused guilty of offences levelled against him

Conviction and sentences recorded against accused by two courts below were set aside, he was acquitted of the charge levelled against him

Accused being on bail, his bail bonds were cancelled and sureties were absolved from the liability of bail bonds, in circumstances. [Paras. 8, 9 and 10 of the judgment] Mujahid Ali Khan, A.A.G. for the State. JUDGMENT ASSADULLAH KHAN CHAMKANI, J.

Impugned herein is the judgment dated 11.02.2014 of learned Judicial Magistrate Charasadda and judgment dated 19.03.2014, of learned Additional Sessions Judge Charsadda, whereby the former convicted and sentenced petitioner Imdad under sections 420, 468 to undergo 03 years' S.I. under each section of law and also to pay a fine of Rs.25,000/- under section 420, P.P.C. and to suffer 02 years' S.I. under section 471, P.P.C., while the latter, on appeal, set aside the conviction and sentence of the petitioner under section 468, P.P.C., however, maintained his conviction and sentence under sections 420 and 471, P.P.C., in case FIR No.679 dated 23.07.2012, registered under sections 419/420/468/471, P.P.C., at Police Station Prang, District Charsadda.

2. The prosecution case is that on 29.06.2012, Bismillah Jan Khan ASI on the direction of District Police Officer Charsadda, under the supervision of Sami ud Din Inspector AVLS Car Lifting Staff Gulberg Lahore, along with other police contingent, conducted a barricade on motorway near interchange Charsadda. At 1400 hours vehicle bearing registration No.LXM-6500 Toyota Corolla Model, 1997, driven by petitioner-convict was intercepted. On examination, its engine and chassis numbers were found to be tampered, thus, suspecting the same to be stolen one, was taken into possession under sections 523/550, Cr.P.C. and inquiry under section 156(3), Cr.P.C. was initiated. During inquiry, the vehicle was subjected through FSL and in light of positive report of the FSL qua tampering in chassis number, instant case was registered against the petitioner/convict and absconding co-accused Sheraz. Under section 420, P.P.C. To undergo 03 years' S.I. and to pay a fine of Rs.25,000/- or in default thereof to undergo 6 months' S.I. further. Under section 468, P.P.C. To undergo 03 years' S.I. Under section 471, P.P.C. To undergo 02 years' S.I. All the sentences have been directed to run concurrently and the motorcar in question was directed to be kept intact till the arrest and trial of absconding co-accused.

4. Being discontented with the judgment of the learned Trial Court, petitioner/convict preferred appeal before the learned Sessions Judge Charsadda, which was partially allowed. Conviction and sentence of the petitioner under section 468, P.P.C. were set aside, however, his conviction and sentences under sections 420 and 471, P.P.C., were upheld. Hence, this revision petition.

5. Learned counsel for the petitioner/convict argued that from the day first the stance of the petitioner is that he is bona fide purchaser of the vehicle in question. To this effect learned counsel referred to a sale deed executed between the petitioner and absconding co-accused dated 16.06.2012 and contended that said sale had been produced by the petitioner before the I.O. during investigation and the I.O. has also recorded statements of marginal witnesses of the said deed, which support the version of defence. He further argued that no evidence whatsoever has been brought on record to attract sections 420, 468 and 471, P.P.C. against the petitioner/convict, therefore, his conviction and sentence recorded by the learned fora below being against the law and evidence available on record are liable to be set at naught. He further argued that registration book of the vehicle has been verified to be correct by the concerned MRA; that mere FSL report qua tampering with chassis, number of the vehicle would not be sufficient for recording conviction of the petitioner unless the same is proved through tangible evidence to have been done by the petitioner. He went on to say that in light of the available evidence, the prosecution at least would have a good case against absconding co-accused who cheated the petitioner by sticking bargain of the vehicle in question with the petitioner, however, the petitioner being innocent is liable to be acquitted.

6. Conversely, learned A.A.G. while supporting the impugned judgments of the two courts below, sought dismissal of the revision petition.

7. I have given my anxious consideration to respective arguments of both the sides and perused the record with their able assistance.

8. Before dilating upon the merits of the case, I deem it appropriate to reproduce the sections of law under which the petitioner has been convicted by two courts below, so as to determine in as to whether these sections of law could be attracted against the petitioner keeping in view the evidence available on record, and if so, whether the prosecution has proved the guilt of the petitioner through cogent and confidence inspiring evidence. Section 420, P.P.C. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter, or destroy the whole or any part of the valuable security, or anything which is signed or sealed and which is capable or being converted into a valuable security, shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. In the case in hand, there is no such allegation against the petitioner which may attract the provisions of section 420, P.P.C. The only allegation against the petitioner is that motorcar in quetion was recovered from his possession, which being suspected was sent to FSL, where its chassis number was found tampered. Thus, provision of section 420, P.P.C. would not be attracted when there is nothing against the petitioner that he had cheated any body and dishonestly induced anybody to deliver any property or to make, alter or destroy the whole or any part of valuable security or sign or seal or anything capable of being converted into a valuable security. Section 468, P.P.C. Forgery for purpose of cheating. Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years and shall be liable to fine. The plain reading of the section ibid clearly speaks about commission of forgery in documents with the intention to use the same for the purpose of cheating. There is no allegation against the petitioner/convict about cheating of any document. Rather, the registration book of the vehicle in question produced by him has been verified from the concerned MRA, which was found to be correct with engine and chassis number mentioned therein. Bismillah Khan ASI, who seized the motorcar in question from the petitioner appeared as PW.1. In cross-examination he admitted it correct that it is not mentioned in Motor Registering Authority Report that the vehicle in question bearing registration No.LXM.6500 is having bogus number or registration. In view of the above, provisions of section 468, P.P.C., which speaks about forgery of documents, cannot be attracted against the petitioner. Section 471, P.P.C. Using as genuine a forged document. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document. The very heading of the section is very much clear, which says about use of fraudulently and dishonestly any document as genuine with the knowledge that the same is forged. Again, there is no such allegation against the petitioner. None of the sections of law referred to above, under which the courts below have recorded conviction of the petitioner can be attracted against the petitioner. "First figure and last five digits of the chassis number were filled with weld material and not decipherable. The present first figure and digits of the chassis number re-stamped one". As stated earlier, petitioner has original registration book which has been found genuine on verification from Motor Registration Authority. During investigation petitioner at the very first instance produced sale deed to the I.O. and disclosed about bargain of the motorcar in question with absconding co-accused against sale consideration of Rs.6,30,000/- which fact has been admitted by Munir Khan ASI (PW.2) in cross-examination. He deposed that accused-petitioner produced him a deed executed between him and absconding co-accused; that he also recorded the statements of marginal witnesses of the deed, who admitted the transaction in their statement. He further admitted the registration book to be in the name of Sheraz, the absconding co-accused. As a routine practice and observation, particularly, in this part of the country, people usually purchase vehicles with open transfer letters, without transferring the same on their names by simply scribing a deed and usually the vehicles remain in the names of the very first owners. Such exercises are adopted only to avoid taxes, which practice is highly deplorable, however, similar seems to be the position in the instant case. The peculiar facts and circumstances of the case particularly the written sale deed dated 16.06.2012 executed between the petitioner and absconding co-accused reveals that petitioner purchased the vehicle in question from absconding co-accused Sheraz with open transfer letter but did not transfer the same at his name till date as he has the original registration book and open transfer letter in his custody. The sale consideration amounting to Rs.6,30,000/- also supports the version of the petitioner as the motorcar in question is Toyota Corolla model 1999 and rupees six lacs round about, is the normal market value of such like vehicles these days. Had the petitioner any knowledge about tampering in chassis number of the vehicle in question, he would have never purchased the same in lieu of Rs.6,30,000/-. There is not an iota of evidence to prove that it was the petitioner who tempered with chassis number of the vehicle in question. Onus to prove tampering was on the shoulder of the prosecution but the prosecution has miserably failed to discharge the same.

10. In view of the above, both the courts below have not appreciated the evidence in its true perspective and reached to erroneous conclusion by holding the appellant guilty of the offences mentioned above. Resultantly, this revision petition is allowed. Conviction and sentences of the petitioner recorded by two courts below are set-aside and he is acquitted of the charge leveled against him. He is on bail, his bail bonds are cancelled and sureties are absolved from the liability of bail bonds.

11. Before parting with the judgment, I would like to refer to the statement of accused/petitioner recorded under section 342, Cr.P.C., wherein after recording questions Nos.1 and 2, bypassing Serial Nos.3, 4 and 5, questions No.6 and so onward have been recorded, which albeit seems to be a clerical mistake, but reflects upon the recklessness of the Trial Judge, who without going through the said statement, signed it. Such mistakes usually throw bad impression in the mind of reader of the judgment qua performance of the Presiding Officer, therefore, should strictly be avoided. Copy of the judgment be sent to the learned Trial Judge/Judicial Magistrate Charsadda for future guidance. HBT//465/P Petition allowed.