Brij Mohan Singla vs State Of Haryana on 5 May, 2009

[Cites 7, Cited by 2]

Punjab-Haryana High Court

Brij Mohan Singla vs State Of Haryana on 5 May, 2009

Under challenge, in this appeal, is the judgment/order dated 24.4.2007/26.4.2007 passed by Shri J.S.Jangra, Special Judge, Jind, whereby the accused has been convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- and in default of payment of Criminal Appeal No.1002-SB of 2007.

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fine, to undergo further rigorous imprisonment for a period of six months under Section 420 IPC.

The facts, giving rise to this case, are that Shri Pirthi Singh Saini, IPS, Superintendent of Police, Hisar, submitted his inquiry report dated 29.5.2001 for registration of a case against accused Brij Mohan Singla and others on the allegations that Nand Lal Garg had taken money from 80/85 persons on credit. He had to return the loan amount to the creditors with interest on their demand. But said Nand Lal Garg left Jind City and due to loss in his business, he could not return the loan amount to the creditors which he had taken from them with interest. After that, a panchayat was convened at the house of accused Brij Mohan Singla who was Cabinet Minster at that time and in that panchayat, it was resolved that 45% of the amount of the creditors will be disbursed to the creditors, by sale of the house, shop and godown of said Nand Lal Garg. But, accused Brij Mohan Singla, Nand Lal Garg, Anil Shorewala, due to their political influence sold the shop, godown and residence of Nand Lal Garg and embezzled and mis- appropriated a sum of Rs.50/60 lacs instead of returning the same to the creditors. Thus, accused Brij Mohan Singla, Nand Lal Garg and Anil Kumar Shorewala, in connivance with each other have Criminal Appeal No.1002-SB of 2007.

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cheated the creditors and also mis-appropriated their money.

On the basis of the report submitted by the Superintendent of Police, Hisar, a case was registered under Section 406, 420, 120-B IPC and Section 13(1)(d) of the Prevention of Corruption Act ( in short the Act).

The name of Anil Kumar Shorewala was mentioned in column No.2 of the challan. Accused Nand Lal Garg absented after getting the relief of anticipatory bail from this Court and he was declared Proclaimed Offender vide order dated 2.8.2004.

The appellant was charge-sheeted accordingly to which he pleaded not guilty and claimed trial.

To support its case, the prosecution has examined PW-1 Kundan Lal, ex-MLA, PW-2 Ram Karan Dass Mangal, PW-3 Sham Sunder, PW-4 Ms. Saroj Gupta, PW-5 Rukmani, PW-6 Jit Sachdeva, PW-7 Ramesh, PW-8 Mange Ram, PW-9 Kuldeep, PW-10 Moji Ram, PW-11 Subhash Chander, PW-12 Balbir Singh, PW-13 Sudesh Gupta, PW-14 Inspector Sita Ram, PW-15 Pirthi Singh and PW-16 Parveen Kumar Mehta.

When examined under Section 313 Cr.P.C, the accused denied the prosecution allegations and pleaded innocence. He further stated that it is a false case based on political rivalry. The Criminal Appeal No.1002-SB of 2007.

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complainant is habitual of making false complaints and he has been convicted and sentenced under Section 182 IPC. The main accused, in the case, has not appeared. Similar type of complaint was filed by the complainant which was dismissed in the presence of Chief Minister in the meeting of the Grievance Committee. Present case had been registered at the instance of Mr. Chautala, who was then Chief Minister of the State and he was Cabinet Minister in his Government. He dismissed him from the post of Minister. A similar case was also registered against him at Chandigarh which was also dismissed. Thereafter, many cases were registered against him at the instance of Mr. Chataula.

In his defence, the accused examined Ajay Kumar Bhatia as DW-1 and closed his evidence after tendering some documents in the evidence.

After the trial was over, the accused was convicted and sentenced, as noticed earlier.

Feeling aggrieved against the same judgment/order, the accused has filed the instant appeal.

The learned counsel for the appellant has submitted that the appellant was charge-sheeted under Section 13(1)(d) of the Prevention of Corruption Act ( in short the Act) for having Criminal Appeal No.1002-SB of 2007.

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received amount from the sale of property of Nand Lal Garg. The learned trial Court, after appraisal of evidence, acquitted the appellant of the charge under Section 13(1)(d) of the Act by holding that the appellant is not the beneficiary of any amount in respect of sale of property of Nand Lal Garg. However, the trial Court has wrongly convicted the appellant under Section 420 IPC. No ingredient of offence under Section 420 IPC is made out against the appellant, even if the whole of prosecution story is taken as a gospel truth. According to the prosecution story, Nand Lal Garg owed money to 80/85 persons and was not paying the said amount. It is further alleged that the creditors of Nand Lal Garg approached the appellant being influential person and the appellant assured them that 40% to 45% of the debt would be paid by the sale of properties of Nand Lal Garg. It is further submitted that Nand Lal Garg owned only two properties i.e. a godown and a house. The godown was sold by Nand Lal Garg for a consideration of Rs.50,000/- vide sale deed, dated 29.4.1997, Exhibit PG in favour of Joginder Gupta son of Veer Bhan and Raj Kumar Singla son of Bindraban. The other property of Nand Lal Garg was sold by him i.e. house vide sale deed dated 17.2.1997 in favour of Roop Chand son of Puran Chand. The appellant was not present at the Criminal Appeal No.1002-SB of 2007.

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time of sale of those properties nor any amount was received by him. So, there was no question of his cheating the creditors of Nand Lal Garg.

It has been further contended that the prosecution witnesses have not given the date when the gathering had taken place in the house of the appellant. However, one witness of the prosecution has given the date of actual gathering in the month of March,1997. The major portion of the properties of Nand Lal Garg was the house which was sold by him through sale deed, Exhibit PE and the said sale deed is dated 17.2.1997 i.e. prior to the alleged gathering in the house of the appellant. In the sale deed, Exhibit PE, in respect of house, Nand Lal Garg has mentioned that the same has been sold for the purpose of purchasing another plot. Since according to the prosecution, the said property was already sold by Nand Lal Garg prior to the gathering, so the fraud is on the part of Nand Lal Garg as he has not disclosed the factum of selling the house. The other property of Nand Lal Garg i.e. godown was sold by him on 29.4.1997. So, the appellant cannot held criminally liable for the act of Nand Lal Garg. There is no other property of Nand Lal Garg. There is no evidence on the file regarding having received Pugri (premium amount) in respect of leasing out of the Criminal Appeal No.1002-SB of 2007.

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shop by Nand Lal Garg to any other person. Therefore, it is contended that the prosecution has utterly failed to prove the ingredients of offence under Section 420 IPC.

It is further contended that the complainant, in this case, has himself committed fraud. He forged agreement in his favour in respect of house of Nand Lal Garg. When there was a report of Handwriting and Finger Print Expert that signatures of Nand Lal Garg did not figure on the agreement in his favour, he withdrew the suit on 6.6.1997.

It is further contended that according to the prosecution case, Nand Lal Garg owed money to 80/85 years. Strangely enough, not even a single document of loan has been produced by the prosecution on the file. So, the story of raising loan by Nand Lal Garg dashes to the ground.

It is further contended that even according to the Investigating Officer, the appellant never stood guarantor for payment of the alleged loan amount by Nand Lal Garg. So, in these circumstances, what to talk of criminal liability, there cannot be any civil liability to pay the amount of loan amount of Nand Lal Garg.

It is further contended that the learned trial Court blew Criminal Appeal No.1002-SB of 2007.

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hot and cold in the same breath. While acquitting the appellant under Section 13(1)d) of the Act, it has been held that the appellant is not the beneficiary of the sale by Nand Lal Garg. On the other hand, while dealing with Section 420 IPC, it has been held that the appellant allowed the sale of property by Nand Lal Garg. As discussed above, the sale of the house of Nand Lal Garg has already been effected prior to the gathering. So, the appellant had no control over the said sale. So far as sale in respect of godown, vide sale deed Exhibit PG is concerned, the same was for a small amount of Rs.50,000/- and it was not the case of the prosecution that the sale has been effected in the presence of the appellant. Therefore, even the trial Court has admitted the fact that the sale has not taken place in the presence of the appellant. Hence, for the act of Nand Lal Garg, the appellant cannot be held guilty under Section 420 IPC.

The learned counsel for the appellant has submitted that the trial Court has not discussed the prosecution evidence in its right perspective. The accused has been able to shake the testimony of the prosecution witnesses altogether and the trial Court has not appreciated this aspect of the case. On that count, the judgment rendered by the trial Court is faulty.

Criminal Appeal No.1002-SB of 2007.

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The learned State counsel has supported the judgment of the trial Court.

I have considered the submissions made by both sides and have gone through the record of the case.

In this case, the accused has been acquitted under Section 13(1)(d) of the Act but has been convicted under Section 420 IPC. The question, in this appeal, is whether the ingredients of offence under Section 420 IPC are made out against the accused or not. To properly appreciate this fact, Section 420 IPC is re- produced hereunder:-

"420. 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 a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Criminal Appeal No.1002-SB of 2007.

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Now, reverting to the facts of the present case, it is to be noticed that the case of the prosecution is that the accused was a Cabinet Minister. Nand Lal Garg raised a loan from 80 to 85 persons and was not re-paying the same. It has further come in the evidence that the creditors, including the prosecution witnesses, approached the appellant with a request that Nand Lal Garg was not paying their debt and a meeting was held at the premises of the appellant, in the presence of Nand Lal Garg, another accused. It was decided that the creditors should be paid the amount to the extent of 45% after selling the properties of Nand Lal Garg. It was further alleged that Nand Lal Garg has sold his properties and has not paid the amount to the creditors including the prosecution witnesses and, in these circumstances, the accused is liable under Section 420 IPC for cheating the public by lending assurance that their amount would be paid after the sale of the properties.

In a criminal case, the prosecution has to prove each and every ingredient of the offence, beyond reasonable doubt. It is no body's case that the amount of loan was lent by Nand Lal Garg to the creditors on the assurance of the appellant. It is also proved from the testimony of the prosecution witnesses that the accused/appellant has not approached the creditors for convening a Criminal Appeal No.1002-SB of 2007.

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panchayat but the creditors have approached the appellant to mediate for the recovery of their loan amount by the sale of the properties of Nand Lal Garg. None of the prosecution witnesses has given the time of occurrence in his examination-in-chief. However, in the cross-examination PW-6 Jit Sachdeva has stated that a meeting was held at the residence of the appellant in the month of March, 1997. The prosecution has been able to prove two sale deeds belonging to the property of Nand Lal Garg. One sale deed is Exhibit PE dated 17.2.1997 for a consideration of Rs.3,20,000/- and another sale deed is dated 29.4.1997, Exhibit PG for a consideration of Rs.50,000/-. So, according to the facts of the present case, sale deed dated 17.2.1997 has already been registered when there was gathering which has taken place in the house of the appellant. From the perusal of said sale deed, it is revealed that it is mentioned that the same is being executed for purchasing another property and it is no where mentioned that the house of Nand Lal Garg has been sold for clearing the debts. The appellant is not a witness to the said sale deed. So, by no stretch of imagination, he could know that the major portion of the property of Nand Lal Garg has already been sold by him prior to convening of panchayat in the house of the appellant. The other sale deed is for a Criminal Appeal No.1002-SB of 2007.

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consideration of Rs.50,000/- and this sale deed is also not witnessed by the appellant. Even the trial Court has held that there is no evidence that Brij Mohan Singla has embezzled an amount of Rs.50 to 60 lacs by selling the properties of Nand Lal Garg. The trial Court in para No.24 of the judgment, has observed as under:-

"Prosecution has not produced any evidence that accused Brij Mohan Singla took the property of Nand Lal Garg in his control or possession. Thus, prosecution has failed to produce any reliable evidence in this respect. Mere statements of the witnesses are not sufficient that accused has taken any pecuniary benefit under the influence of his office."

The loan was not advanced by Nand Lal Garg to the creditors at the instance of the appellant. Brij Mohan Singla, appellant has simply intervened being public person and that, too, at the instance of the creditors. There is no evidence on the file that the appellant was in the knowledge of the fact that Nand Lal Garg has already sold his major portion of the property prior to the convening of panchayat. The appellant has simply intervened to the extent that the property of Nand Lal Garg be sold and the sale price be distributed amongst the creditors pro-rata. PW-15 Pirthi Criminal Appeal No.1002-SB of 2007.

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Singh, retired Superintendent of Police has stated that the appellant did not stand as guarantor for the re-payment of the loan to the creditors. If a public man intervenes in such an affair, then it does not mean that he has cheated the creditors. Even the trial Court has held that the appellant has not been benefitted in any manner by the sale of the property of Nand Lal Garg. As discussed above, major portion of his property was already sold when the gathering has taken place. The prosecution has been able to prove only one sale deed after the gathering i.e. Exhibit PG, for a consideration of Rs.50,000/-. The prosecution has not been able to prove that the amount of Rs.50,000/- was received by the appellant. In case Nand Lal Garg has clandestinely sold the godown vide, sale deed Exhibit PG, for a consideration of Rs.50,000/-, the appellant cannot be held criminally liable. The prosecution has failed to prove criminal intention on the part of the appellant. Even, according to the complaint, Saroj Gupta, one of the creditors even convened a panchahat in the house of Brij Mohan Singla appellant.

The definition of cheating has been given in Section 415 IPC which is re-produced as under:-

"415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so Criminal Appeal No.1002-SB of 2007.

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deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

The appellant has not deceived any person fraudulently or dishonestly to deliver the loan. There is nothing on the file that the appellant had control over the property of Nand Lal Garg. So, in these circumstances, the finding of the learned trial Court that the appellant has deceived the person by giving assurance to return the loan amount does not fall within the ambit of cheating. According to the case of the prosecution, in the gathering convened at the instance of the creditors, the appellant mediated and suggested a solution that the property of Nand Lal Garg be sold and the proceeds be distributed amongst the creditors. So, in these circumstances, the judgment of the learned trial Court does not sustain the test of legal scrutiny.

Consequently, this appeal stands accepted. The judgment of trial Court stands set aside and the accused stands Criminal Appeal No.1002-SB of 2007.

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acquitted, by giving him benefit of doubt.

A copy of this judgment be sent to the learned trial Court for strict compliance.


May 5th ,2009.                        ( K. C. Puri )
Jaggi                                     Judge

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