Punjab-Haryana High Court
Ashok Kumar vs State Of Punjab And Others on 11 October, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Revision No. 1543 of 2013(O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision:11.10.2013
(1)Crl. Revision No. 1543 of 2013(O&M)
Ashok Kumar
---Petitioner
Versus
State of Punjab and others
---Respondents
(2)Crl. Revision No. 1544 of 2013(O&M)
Ashok Kumar
---Petitioner
Versus
State of Punjab and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr.Vikas Bahl, Advocate,
for the petitioner
***
REKHA MITTAL, J.
Saini Paramjit Kaur
2013.10.31 12:17
I attest to the accuracy and
integrity of this document
Chandigarh
Crl. Revision No. 1543 of 2013(O&M) -2-
By way of this order, I shall dispose of Criminal Revision Nos. 1543 of 2013 and 1544 of 2013 as both the petitions have emerged out of same judgment dated 11.2.2013 passed by the Sessions Judge, Fatehgarh Sahib whereby the appeals titled "Pawan Kumar vs. State of Punjab and another" and "Naresh Kumar vs. State of Punjab and another" arising out of common judgment of conviction and order of sentence dated 19.2.2011 passed by the Chief Judicial Magistrate, Fatehgarh Sahib have been allowed and the appellants (respondents herein) were ordered to be acquitted of the offence charged against them.
Counsel for the petitioner would contend that the Appellate Court committed a serious error in reversing the judgment passed by the trial Court which is based upon correct appreciation of the entire matter in right perspective. It is further submitted that the private respondents connived/colluded with each other and alienated the land belonging to Municipal Council, Sirhind with a deceitful intention to cause wrongful loss to a public body and a wrongful gain to the private respondents. The respondents Pawan Kumar and Naresh Kumar were rightly held guilty of committing offence punishable under Sections 420, 467, 468 of the Indian Penal Code, 1860 (for short "IPC"). It is further argued that the Appellate Court has wrongly mentioned that Paras Ram, Manak Chand and Bhagwan Das have sold only possessory rights to Naresh Kumar whereas ownership of said Khasra No. 53//21/1-21/2 continue to vest in Small Town Committee, Sirhind. According to counsel, these factual findings of fact are contrary to the sale deeds dated 4.3.1991 and 8.1.1992 executed by Paras Ram, Manak Chand and Bhagwan Das sons of Inder Singh and Ami Chand Saini Paramjit Kaur 2013.10.31 12:17 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1543 of 2013(O&M) -3- son of Devi Dayal, respectively, through which all the rights with regard to ownership and possession were purported to be transferred in favour of the vendee under these sale deeds.
I have heard counsel for the petitioner and gone through the records.
A perusal of allegations set up in the first information report lodged at the behest of Ashok Kumar petitioner would reveal that it was averred that Naresh Kumar alienated land ownership of Nagar Council, Sirhind in favour of one of his relatives namely, Pawan Kumar and therefore, the vendor and vendee are guilty of committing offence of cheating and forging documents constituting offence punishable under Sections 420, 467, 468 IPC. Indisputably, there was a long drawn litigation between the khewatdars and Municipal Council, Sirhind which was decided up to this Court in favour of the Khewatdars but the appeal preferred by Municipal Council, Sirhind by way of Special Leave titled "Municipal Council, Sirhind vs. Parshotam Dass and others" before Hon'ble the Supreme Court of India was allowed vide judgment dated 15.2.1996. The sale deeds in the year 1991-92 were executed by the aforesaid persons before the appeal preferred by the Municipal Council, Sirhind was accepted by Hon'ble the Supreme Court of India. The Appellate Court has held that the land subject matter of litigation in civil proceedings pertains to Khewat No. 391 measuring 321 Kanal 14 marlas and Khewat No. 392 measuring 1197 Kanal 5 marla situated in village Brahman Majra, Tehsil Sirhind. It was further held that there is absolutely no evidence that the land comprising Khasra No. 53//21/1 (3-8) Banjar Qadim and 21/2(208) banjar Saini Paramjit Kaur 2013.10.31 12:17 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1543 of 2013(O&M) -4- karim measuring 5 kanal 16 marla of Khewat Khatoni No. 427 and Khasra No. 33//21/2 (5-0) Khewat Khatauni No. 16 subject matter of power of attorney Ex. PW7/B dated 20.1.1992 executed by Naresh Kumar accused was a part of Khewat Nos. 391 and 392 which was subject matter of litigation ultimately decided in favour of Municipal Council, Sirhind in 1996. Counsel for the petitioner has not disputed correctness of these findings of fact recorded by the Appellate Court.
As the prosecution has failed to connect the land, subject matter of power of attorney and sale deeds with the land in regard whereof the appeal of Municipal Council, Sirhind was accepted by Hon'ble the Supreme Court of India, the petitioner cannot be heard to say that Naresh Kumar and Pawan Kumar sold land of ownership of the Municipal Council. This apart, if Naresh Kumar had alienated the property owned by Municipal Council, Sirhind claiming himself to be owner and executed/ registered the sale deed, the owner of the land cannot file a complaint on the ground that he has been cheated or the vendor is guilty of committing offence of forgery. In this context, I find fortification from the observations made by Hon'ble the Supreme Court of India in Md. Ibrahim and others vs. State of Bihar and another 2009(4)RCR (Criminal) 369. The Hon'ble Court, on a detailed examination of provisions of Sections 415, 420, 464, 467, 471 IPC has held in paras 11 to 14 which reads thus:-
"11. In short, a person is said to have made a 'false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his Saini Paramjit Kaur 2013.10.31 12:17 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1543 of 2013(O&M) -5- senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery or the documents with the intention or taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of false documents'. It is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Saini Paramjit Kaur 2013.10.31 12:17 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1543 of 2013(O&M) -6- Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement or that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration.
But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or Saini Paramjit Kaur 2013.10.31 12:17 I attest to the accuracy and integrity of this document Chandigarh Crl. Revision No. 1543 of 2013(O&M) -7- to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code." Coming to the facts of the case in hand, Naresh Kumar executed sale deeds in favour of the other accused claiming himself to be owner of the property. The complaint has not been filed by the purchaser/vendee under the sale deeds. In view of the observations made by Hon'ble the Supreme Court of India, I do not find any reason to differ with the findings recorded by the Appellate Court particularly in the circumstances that scope of interference in revision against judgment of acquittal is very limited in view of Section 401(3) of the Code.
In view of what has been discussed hereinabove, the petitions are dismissed in limine. No order as to costs.
( Rekha Mittal ) Judge 11.10.2013 paramjit Saini Paramjit Kaur 2013.10.31 12:17 I attest to the accuracy and integrity of this document Chandigarh