# Lalit Kumar v. State of U.P. & Anr - **Citation:** (2016) 8 ILRA 703 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-10 - **Bench:** Amar Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-kumar-v-state-of-u-p-anr-44374 - **Pages:** 6 ## Text 8 All. Lalit Kumar Vs State Of U.P. & Anr. 703 (2016) 8 ILRA 703 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 10.08.2016 BEFORE THE HON'BLE AMAR SINGH CHAUHAN, J. Criminal Appeal No.- 1778 Of 2011 Lalit Kumar ...Appellant Versus State of U.P. & Anr. ...Respondents Counsel for Appellant: R.K. Pandey, Siddharth Singhal Counsel for Respondents: Government Advocate, Amit Daga, Pankaj Govil Facts: The appellant challenged the alleged compromise filed by opposite party Nand Kishore in Execution Case No. 11 of 2009 concerning the decree from Land Acquisition Reference No. 132 of 1994. The appellant claimed that the compromise was fabricated and sought action under section 340 Cr.P.C. The executing court dismissed the application as neither the decree holder (Guru Ratan Pal Singh) nor the counsel (Dinesh Singh) substantiated their affidavits. Issues: Whether a prima facie case under section 340 Cr.P.C. could be entertained when affidavits denying the compromise were on record but the deponents did not appear for cross-examination. Headnote: Appeal against the order dated 17.02.2011 of the Additional District & Sessions Judge, Procedural History: Court No. 9, Bulandshahar in Criminal Misc. Case No. 51 of 2010 (State vs. Nand Kishore) under section 340 Cr.P.C., whereby the appellant's application for initiating proceedings against alleged forgery and cheating was rejected. Affidavits are not evidence under the Evidence Act and cannot be relied upon without cross-examination. Section 340 Cr.P.C. proceedings require that the court be satisfied of expediency and presence of a false affidavit or evidence before initiating inquiry. In the present case, the compromise was verified and accepted by the court and became part of the decree; any dispute can be challenged only through civil remedies. The executing court's dismissal of the section 340 Cr.P.C. application was correct. Result: Appeal dismissed. No order as to costs. Case Law Discussed: Arun Dhawan & Anr. vs. Lokesh Dhawan, 2015 (188) Comp. Cases 161 Kuldeep Kapoor vs. Susanta Sengupta, 2006 (126) DLT 704 INDIAN LAW REPORTS ALLAHABAD SERIES B.K. Gupta vs. Damodar H. Bajaj & Ors., 2001 (42) ACC 1074 (Delivered by: Hon'ble Amar Singh Chauhan, J.) (Delivered by Hon'ble Amar Singh Chauhan, J.) 1. Appellant Lalit Kumar has preferred this criminal appeal against the order dated 17.2.2011, passed by the Additional District & Sessions Judge, Court No. 9, Bulandshahar in Criminal Misc. Case No. 51 of 2010 (State vs. Nand Kishore) under section 340 Cr.P.C. whereby the application of the appellant moved under section 340 Cr.P.C. was rejected. 2. Brief facts which giving rise to this appeal are that the land situated in village Dungarpur Rilakha, Kasba Dankaur, Tehsil Sikandrabad, District Gautam Budh Nagar belonging to the Khalsa Sanyukt Sahkari Khet Samiti Limited (hereinafter referred to as the 'Society') was acquired by the Notification dated 02.12.1991 published on 03.01.1992 in favour of Krishi Utpadan Mandi, Dankaur and award was passed. The said Society was not satisfied with the award and chose to prefer Land Acquisition Reference (in short 'L.A.R.') before the court of District Judge, Bulandshahar which was registered as LAR No. 132 of 1994 and the court of Additional District & Sessions Judge, Court No. 9, District Bulandshahar vide its judgement and order dated 30.1.2009 passed the award in favour of the said Society. 3. Guru Ratan Pal Singh as president of the said Society has filed execution proceeding against the said order before the court which was registered as Execution Case No. 11 of 2009 (Guru Ratan Pal Singh vs. State of U.P. & others). In pursuance of resolution dated 16.11.2005, the Society executed assignment deed dated 20.2.2009 in favour of the appellant Lalit Kumar as Secretary of Raj Hospital, who was permitted to get himself impleaded in the execution case. It was resolved that outcome of the LAR No. 132 of 1994 the decree may be transferred to the above trust for a sum of Rs. 2,50,000/-. 4. During pendency of the execution in pursuance of assignment deed dated 13.9.2002 opposite party no. 2 Nand Kishore filed alleged compromise which stated to have been signed by the Advocate Dinesh Singh as well as counsel for the decree holder and counsel for opposite party no. 2 whereby it has been resolved that decretal amount of the award shall be equally divided between the appellant and opposite party no. 2 Nand Kishore. After getting verification and accepting the compromise, the executing court directed the name of the opposite party no. 2 Nand Kishore to be substituted in place of Guru Ratan Pal Singh. 5. Therefore, appellant moved application under section 340 Cr.P.C. with prayer that necessary proceeding be initiated against the responsible person as the alleged act come within the purview of offence of cheating. 6. After hearing the appellant and perusing the record of the application under section 340 Cr.P.C., application was dismissed by the executing court on the ground that the Guru Ratan Pal Singh. The decree holder and Advocate Dinesh Singh, counsel for the appellant did not make 8 All. Lalit Kumar Vs State Of U.P. & Anr. 705 themselves present for examination and also to substantiate the affidavit said to be filed by them during the existence of factum of compromise as such prima facie case is not made out to proceed as per section 340 Cr.P.C. 7. Feeling aggrieved by the said order appellant filed this appeal. 8. I have heard Sri Siddharth Singhal, learned counsel for the appellant, Sri Pankaj Govil, learned counsel for the opposite party no. 2, learned Additional Government Advocate for the State and perused the material available on record. 9. The main point of consideration is whether court below could have proceeded to dismiss the application merely for the reason that Guru Ratan Pal Singh and Dinesh Singh did not appear to give their statements especially with an affidavit filed by the said person were already on record and the court below was in possession of the entire record and whether prima facie case is made out to proceed as per section 340 Cr.P.C. against the respondent. 10. It is submitted by the appellant that the alleged compromise is stated to have been executed under the signature of the advocate Dinesh Singh from one side and from other advocate from the side of opposite party no. 2 Nand Kishore. The court below has discarded the affidavit filed by the Advocate Dinesh Singh with respect to denying the existing of factum of entering any such compromise by saying that he did not appear to substantiate the affidavit. Opposite party no. 2 has come up with a fabricated piece of document i.e. compromise dated 30.10.2009 whereby the opposite party no. 2 Nand Kishore claimed himself to be entitled for half of the decretal amount. It is further submitted that the statement of witnesses are not required to be considered under section 340 Cr.P.C. Learned counsel for the appellant has relied upon the case law Arun Dhawan and another vs. Lokesh Dhawan, 2015 (188) Comp. Cases 161 in which it has been held that embargo as laid down by sections 195(1)(b)(i)&(ii). Criminal Procedure Code applies only where forgery has taken place after document has been filed. Even if a document was forged prior to institution of legal proceedings, Court will have jurisdiction to entertain an application under section 340 of the Code if the document has been produced in Court proceedings. The appellant further submitted that no person shall be allowed to tamper any evidence resulting in creating hurdles in administration of justice as has been observed in case of Kuldeep Kapoor vs. Susanta Sengupta, 2006 (126) DLT. 11. Per contra learned counsel for opposite party no. 2 made objection inter alia on the ground that registered assignment deed dated 13.9.2002 was in favour of Kailash Chand (father of appellant) and Nand Kishore (opposite party no. 2) equally for the consideration of Rs. 2,37,400/-. The opposite party no. 2 on the basis of the assignment deed filed the compromise for substitution/mutation of his name for half part of the decree in the said execution and the compromise after being duly verified and accepted became the part of the award. The only remedy available to the appellant is to challenge the said compromise decree before the competent court. The affidavit filed by counsel for the appellant, Dinesh Singh, Advocate could neither be substantiated nor none came before the court concerned to deny the compromise. Even the decree 706 INDIAN LAW REPORTS ALLAHABAD SERIES holder Guru Ratan Pal Singh also did not come forward to deny the compromise. The proceeding under section 340 Cr.P.C. is barred by the Section 195(1)(b) Cr.P.C. It is well settled law that section 195(1)(b) Cr.P.C. bars the cognizance of offence committed on a document "subsequent to its production or giving in evidence in proceeding of court". If the alleged imputed act was committed before its production in proceeding of court i.e. if a document said to be forged was filed in proceeding of court, the ordinary procedure of cognizance will apply. 12. In this case appellant as well as opposite party no. 2 Nand Kishore in pursuance of assignment deed got mutated in place of decree holder Guru Ratan Pal Singh with the resolution that both the persons shall get fruits of the decree equally divided between the appellant and opposite party no. 2 Nand Kishore. The decree holder Guru Ratan Pal Singh and Dinesh Singh, counsel for the appellant who signed the compromise neither make themselves present for pressing affidavit nor denying the existence of the compromise. The advocate Dinesh Singh who represent appellant is said to file an affidavit with respect to denying the existence or the factum of entering into compromise did not make available before the court in spite of direction of the concerned court to substantiate the affidavit. So far as the admissibility of the affidavit is concerned affidavit in chief cannot be appreciated without cross examination and the objection as evidence qua the credibility, relevancy, adequacy, the witness being interested partisan, truthfulness/falsehood, conspiracy are subject matter of final disposal only after cross examination. Besides affidavits are not included in definition of evidence as per section 3 of the Evidence Act. "This affidavit has no evidentiary value. Firstly, the affidavit is not an evidence within the meaning of Sees. 1 and 3 of the Evidence Act and, secondly, the affidavit cannot destroy or take away the rights on the suit property which were gifted to the party concerned. Combined reading of Section 1 and definition of expression' evidence' under Section 3 makes it clear that affidavit is not an evidence. Section 1 and 3 reads as follows: "1. Short title, extent and commencement,-- This Act may be called the Indian Evidence Act, 1872. It extends to whole of India (except the State of Jammu and Kashmir) and applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the Army Act. the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; And it shall come into force on the first day of September, 1872". "3. Interpretation clause :-- In this Act, the following words and 'expressions are used in the following senses, unless a contrary intention appears from the context: "Evidence" - Evidence means and includes- (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; 8 All. Lalit Kumar Vs State Of U.P. & Anr. 707 (2) all documents produced for the inspection of the Court; such documents are called documentary evidence". 21. It may be seen that affidavits are not included in Section 3 of the Evidence Act. An affidavit cannot be used as evidence unless law specifically permits certain matters to be proved by affidavit. The reason is that the deponent of an affidavit is not subject to cross-examination for the declarations made in such affidavit." 13. The Hon'ble Apex Court in B.K. Gupta vs. Damodar H. Bajaj and others, 2001 (42) ACC 1074 observed that there are two conditions, on fulfilment of which a complaint can be filed against a person under section 340 Cr.P.C. who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him. 14. In the case in hand pursuant to the assignment registered deed the compromise filed by the parties and after being verified, it was accepted and become a part of the decree which can only be challenged by seeking a civil remedy before appropriate forum. The impugned order is speaking one and does not call for interference. 15. In view of the above discussion, there is no merit in this appeal. It is dismissed accordingly. 16. There is no order as to cost. ----------- 708 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 708 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 10.08.2016 BEFORE THE HON'BLE AMAR SINGH CHAUHAN, J. Criminal Appeal No.- 1862 Of 1982 Sant Ram Pandey & Ors. ...Appellants Versus State ...Respondent Counsel for the Appellants: Sri P.N. Misra, Sri Rajesh Singh (Amicus Curiae) Counsel for the Respondent: Learned A.G.A. Procedure: Appeal against the judgment and order dated 31.07.1982 passed by the II Additional Sessions Judge, Basti in Sessions Trial No. 204 of 1976, Sessions Trial No. 304 of 1976 and Sessions Trial No. 19 of 1980, arising out of Case Crime No. 18 of 1976, under Sections 395/397 IPC and Section 25 Arms Act, Police Station Parasrampur, District Basti, whereby the accused-appellants Sant Ram Pandey, Ram Lautan and Jhinkoo Lal were convicted and sentenced to five years' rigorous imprisonment each under Section 395 IPC. Case Law Discussed: Babul Musahar vs. State of Bihar, 1990 Crl.J. (NOC) 65 (Patna). Puttan alias Kamal Prasad vs. State of U.P., AIR 1992 SC 1032 : 1992 Cri.L.J. 1122. Raj Kishore Singh vs. State of Bihar, AIR 1971 SC 1058. Budhsen and another vs. State of U.P., AIR 1970 SC 1321. Headnote: Identification in test identification parade is not substantive evidence and can only be used for corroboration. Where the accused were allegedly known to the witnesses earlier, the test identification parade was conducted after considerable delay without explanation, and no independent corroborative evidence or reliable recovery of looted property was proved, conviction cannot be sustained merely on the basis of such identification. In the present case, the alleged recovery witnesses and the Investigating Officer were not examined and the recovery of looted articles was made after a long delay. The evidence of identification was weak and unreliable. Hence, the prosecution failed to prove the participation of the appellants in the dacoity beyond reasonable doubt. Result: Appeal allowed. Conviction and sentence of the appellants Ram Lautan and Jhinkoo Lal under Section 395 IPC set aside and they are acquitted.