Punjab-Haryana High Court
Vipin Khanna vs Amrik Singh And Another on 22 May, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRM-M-11516-2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-11516-2010 (O&M)
Date of Decision: May 22, 2013
Vipin Khanna
...Petitioner
Versus
Amrik Singh and another
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Jasjit Singh Bedi, Advocate,
for the petitioner.
Mr. Keshav Kaushik, Advocate,
for respondent No. 1.
NARESH KUMAR SANGHI, J.
1. Present petition, under Section 482, Cr.P.C., has been filed by the petitioner-accused, Vipin Khanna, for quashing of Complaint No. 178, dated 17.3.2008 (Annexure P-6), pending adjudication before the learned Judicial Magistrate Ist Class, Gurgaon; the summoning order dated 7.3.2009 (Annexure P-7); the order dated 20.3.2010 (Annexure P-9), passed by the learned Additional Sessions Judge, Gurgaon, whereby the criminal revision petition filed by the petitioner was dismissed; and the consequential proceedings arising therefrom.
2. Brief facts of the case are that complainant-
respondent No. 1 had filed the complaint, dated 17.3.2008, (Annexure P-6), before the learned Judicial Magistrate Ist Class, Gurgaon, for prosecution of the petitioner-accused and others for CRM-M-11516-2010 (O&M) 2 the offences punishable under Sections 420, 467, 468 and 471, IPC, with the allegations that on 6.3.1973, Plot No. 382, Sector 14, Gurgaon, was allotted in the joint name of complainant- respondent No. 1, Amrik Singh, and his wife, Gian Kaur, by the Haryana Urban Development Authority; after allotment of the said plot, complainant-respondent No. 1 went to United Kingdom and came back to India on 21.1.1985; when complainant- respondent No. 1 went to see the plot, he came to know that the plot was grabbed by the petitioner-accused, Vipin Khanna, on the basis of a forged and fabricated Power of Attorney, purporting the same to have been executed by him (complainant-respondent No. 1) and his wife, Gian Kaur, on 7.6.1984, in the name of one Indu Singh, whereas no such Power of Attorney was ever executed by them because on the alleged date of execution, complainant-respondent No. 1 was in the United Kingdom; on coming to know the said position, complainant-respondent No. 1 immediately filed an application before the Estate Officer, Haryana Urban Development Authority, but no action was taken; on 12.5.1985, complainant-respondent No. 1 again left India for the United Kingdom and that the petitioner-accused, Vipin Khanna, sold the plot in favour of Inder Kumar Bansal and his wife, Sumitra Bansal, vide registered sale deed, dated 25.10.1986.
3. The learned Judicial Magistrate Ist Class, Gurgaon, CRM-M-11516-2010 (O&M) 3 after holding an enquiry, passed the summoning order, dated 7.3.2009, against Indu Singh, Vipin Khanna and Inder Kumar Bansal, for the offences punishable under Sections 420, 467, 468 and 471, IPC, whereas the complaint qua remaining accused was dismissed. Against the summoning order, the petitioner-accused, Vipin Khanna, filed a criminal revision petition before the learned Court of Session. He also enclosed an application under Section 5 of the Limitation Act for condonation of delay in filing the revision. Vide his order dated 20.3.2010, learned Additional Sessions Judge, Gurgaon, dismissed the application for condonation of delay as well as the criminal revision petition. Hence the present petition.
4. Learned counsel for the petitioner submitted that the petitioner was a bona fide purchaser and, hence, he could not be summoned to face trial for cheating, forgery etc. He further submitted that the complaint before the learned Judicial Magistrate Ist Class, Gurgaon, was filed after a considerable delay, therefore, the summoning order was not justified. He also argued that the learned Additional Sessions Judge should have condoned the delay in filing the criminal revision petition. He also argued that though the learned Revisional Court had also dismissed the criminal revision petition on merits, but without assigning the good reasons, therefore, the order passed by the learned Revisional Court was liable to be set aside. CRM-M-11516-2010 (O&M) 4
5. On the other hand, learned counsel for respondent No. 1-complainant submitted that the material available on record clearly revealed that the petitioner was the beneficiary and at his instance the alleged General Power of Attorney was forged and the property belonging to respondent No. 1-complainant was transferred in the name of the petitioner-accused. To elaborate his submissions, he submitted that the petitioner not only gave his fictitious address of Gurgaon, but also mentioned the incorrect address of respondent No. 1-complainant in the documents forged by the petitioner-accused and his co-accused. He further submitted that after thoroughly scanning the averments of the complaint, the preliminary evidence and the material available on record, the learned Judicial Magistrate Ist Class, Gurgaon, rightly exercised his jurisdiction while summoning the petitioner-accused and his co-accused for the offences punishable under Sections 420, 467, 468 and 471, IPC. He also argued that the offences for which the petitioner and his co-accused were summoned are not covered by Section 468, Cr.P.C., where limitation for taking cognizance of a particular offence has been prescribed. Even otherwise, in the facts and circumstances of the case, the delay, if any, in filing the complaint for the prosecution of the petitioner and his co-accused is inconsequential because respondent No. 1-complainant is though permanent resident of India but was residing in foreign CRM-M-11516-2010 (O&M) 5 country. Therefore, the alleged delay in filing the complaint, would not exonerate the petitioner-accused from the criminal misdeeds committed by him. It was also argued that the learned Additional Sessions Judge had rightly declined the prayer for condonation of delay of several months in filing the criminal revision petition by the petitioner-accused and had correctly dismissed the criminal revision petition on merits. Therefore, he prayed for dismissal of the present petition.
6. I have heard learned counsel for the parties and with their able assistance perused the material available on record.
7. There are specific allegations against the petitioner- accused, Vipin Khanna, that he connived with his co-accused to forge the General Power of Attorney on behalf of respondent No. 1-complainant and thereafter used the said forged General Power of Attorney so that the plot of respondent No. 1-complainant, could be transferred in his name. In para No. (iii) (at page 9) of the present petition, the petitioner-accused has mentioned as under:-
"iii) That in the present, case it is apparent that it is the HUDA authorities who have connived with the power of attorney holder and cheated the original owner as well as the petitioner. Had the HUDA authorities insisted upon retaining the original power of attorney, the present transactions might not have taken place. Even otherwise as per para 3 of the complaint, the CRM-M-11516-2010 (O&M) 6 complainant submitted an application for enquiry on 13.1.1986. The HUDA authorities on receipt of application could very well have denied the execution of conveyance deed in favour of the petitioner on 16.5.1986, after four months of the receipt of the complaint."
8. The above recital spells out that the petitioner admits the factum of purchase of the plot on the basis of the alleged forged Power of Attorney, but is trying to shift the burden on the officials of the Haryana Urban Development Authority. The arguments raised by the learned counsel for the petitioner that he was a bona fide purchaser is a disputed question of fact, which has to be decided by the learned Trial Court on the basis of the evidence and the material to be produced by the parties during the course of trial. At the stage of summoning, the Courts have to see whether material has come on record to prima facie raise a strong suspicion against the accused so that he may be directed to face the trial.
9. After perusal of the material available on record, going through the orders passed by both the Courts below (summoning order passed by the learned Magistrate and the order passed by the learned Revisional Court) and after hearing learned counsel for the parties, this Court is of considered opinion that there is prima facie material available on record to proceed against the petitioner-accused for the offences for which he has been CRM-M-11516-2010 (O&M) 7 summoned to face the trial.
10. This Court is also of the considered opinion that the delay, if any, in filing the complaint will also be considered by the learned Trial Court on the basis of the material to be produced by the parties. The submission of the learned counsel for the petitioner that the learned Additional Sessions Judge should not have dismissed the application for condonation of delay in filing the criminal revision petition, is more or less a question of academic discussion in the present case because the learned Revisional Court has not dismissed the criminal revision petition solely on the ground of delay in filing the revision petition, rather an independent opinion was formed on merits also that a prima facie case for proceeding against the petitioner was made out. Even otherwise, this Court while hearing the learned counsel on merits, has independently arrived at the conclusion, without taking into consideration the fact that the revision petition was hopelessly barred by limitation, therefore, the petitioner shall have no grouse that he was not heard on merits and his petition was dismissed on technical ground of limitation only.
11. As a sequel to the above discussion, the present petition sans merit and the same is hereby dismissed.
(NARESH KUMAR SANGHI)
May 22, 2013 JUDGE
Pkapoor