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2002 DIGILAW 1384 (PNJ)

Chand Singh v. State Of Haryana

2002-12-11

S.S.NIJJAR

body2002
Judgment S.S.Nijjar, J. 1. The petitioner was convicted by Sh. S.K. Gupta, Sub Divn. Judicial Magistrate, Mandi Dabwali in Crl. Case No. 148-1 of 1982 on 10.1.1989 under Section 409 of the IPC and sentenced to undergo R.I. for a period of one year and a fine of Rs.1000/- and in default of the payment of fine, the petitioner shall undergo R.I. for three months and in case of realization of amount of fine, the same be given to the complainant, Balbir Kaur. In appeal, the conviction as well as the sentence has been upheld. 2. At the outset, Mr. Grewal has submitted that the whole trial of the petitioner was misconceived as the essential ingredients of Section 409 of the IPC, even on the admitted facts, would not be, even, prima facie, established. Briefly stated the facts of the case, as set out by the court below, may be noticed. 3. The complaint had been filed by Sarwan Singh against his daughter and son- in-law alleging that he owned 92 kanals and 8 marlas of land in village Dharampura, Tehsil Dabwali, District Sirsa. He had no male issue. He, however, had four daughters named Gurdev Kaur, Sujjan Kaur, Balbir Kaur and Jass Kaur. All of them were married. It was further stated that he was an old man of 80 years of age and his wife had died about 6/7 years ago. Two of his daughters, Sujjan Kaur and Jass Kaur filed a civil suit about the agricultural land in civil court at Dabwali. He was under the influence of his daughter, Gurdev Kaur, accused No. 2. It was stated that Gurdev Kaur and her husband, Chand Singh persuaded him to put her thumb impressions on some blank papers on the pretext that they will defend the case on his behalf. He acted accordingly. The petitioner and his wife also obtained some thumbimpressions on some blank papers and some papers which had some writing on them. The purpose of signing these documents was to enable the petitioner and the daughter of the complainantto defend the civil suit on his behalf. Lateron both the daughter and the son-in-law in collusion with each other got transferred 64 kanals and 15 marlas of land belonging to them in the name of his daughter, Gurdev Kaur by Civil Court decree dated 19.9.1981. Lateron both the daughter and the son-in-law in collusion with each other got transferred 64 kanals and 15 marlas of land belonging to them in the name of his daughter, Gurdev Kaur by Civil Court decree dated 19.9.1981. Both the accused are said to have obtained power of attorney from him in favour of Chand Singh on the pretext of defending the suits filed against him by Sujjan Kaur and Babu Singh on 7.9.1981. He, by means of that power of attorney, never gave any right or authority to any of the accused to alienate his land. It was further alleged that the accused with the help of the power of attorney mortgaged 16 kanals and 8 marlas of land belonging to him in favour of Bhura Singh son of Bhag Singh for a sum of Rs. 14,000/-. The amount received on account of mortgage was never paid to the complainant. Again with the help of the same power of attorney, the petitioner sold 27 kanals and 13 marlas of land belonging to the complainant in favour of Jarnail Singh for a sum of Rs.40,000/-. This amount was also said to be misappropriated by the petitioner. The complainant came to know about the decree dated 19.9.1981 in the second week of 1982 and about the forged power of attorney on 17.1.1982. He thereafter executed a cancellation deed on 18.1.1982. The complaint was filed on 23.2.1982. The petitioner and his wife were both summoned to face the trial for a offence punishable under Section 409 of the IPC. 4. Mr. Grewal submitted that at best, the aforesaid allegations, even if accepted to be correct, would make out a case under section 420 IPC. I find considerable force in the submission made by the learned Senior Counsel. Section 409 IPC reads as under : "409. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 5. A perusal of the section would show that it deals with criminal breach of trust by a public servant or by a banker, merchant or an agent. An agent would undoubtedly be covered under this Section provided the agency is validly created. In the present case, the allegation against the petitioner is that he in collusion with his wife, forged the alleged power of attorney and on the basis of which the land of the complainant was either sold or mortgaged. Therefore, the obvious conclusion is that the complainant never intended to give a power of attorney to the petitioner nor did he ever give any such power of attorney to the petitioner. If that is so, the question of committing criminal breach of trust would not arise. It may, however, be possible to say that the petitioner had committed the offence or cheating or forgery. However, no charges had been framed against the petitioner with regard to offence under Section 420 IPC or for the offence of forgery. He had been convicted and sentenced for having committed criminal breach of trust. I am of the considered opinion that the aforesaid offence is clearly not made out. 6. view of the above, the revision petition is allowed. The conviction and sentence awarded by Sub Divisional Judicial Magistrate, Mandi Dabwali dated 10.1.1989 and the judgment and sentence awarded by the Addl. Sessions Judge, Sirsa dated 20.9.1989 are hereby set aside. The petitioner is acquitted of the charge under Section 409 IPC.