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2003 DIGILAW 223 (PNJ)

Gian Chand v. State of Punjab

2003-02-05

SATISH KUMAR MITTAL

body2003
JUDGMENT Satish Kumar Mittal, J. - The petitioners have filed the instant petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing of F.I.R. No. 171 dated 19.12.1996, registered at Police Station Division No. 2, Ludhiana, under Sections 467/468/471/420 and 120-B of the Indian Penal Code, the order dated 10.3.1998 (Annexure P-2) of framing the charge against the petitioners, the charge-sheet dated 10.3.1998 (Annexure P-3) and the order dated 4.2.1998 (Annexure P-4) vide which the application of the petitioners for discharging them, was dismissed. 2. The aforesaid F.I.R. was registered on the complaint filed by respondent No. 2-Charanjit Lal against the petitioners. It has been alleged in the F.I.R. that the complainant-Charanjit Lal is the partner of firm M/s. Yog Raj & Brothers. The said firm was the owner of the land measuring 905 Sq. Yards in Khasra No. 512, as per the Jamabandi for the year 1974-75. The said firm through its partners, including Yog Raj, who is the real brother of the complainant, sold a part of the above land measuring 565 Sq. yards from Khasra No. 512 to petitioners No. 1 and 2, namely, Gian Chand and Gulshan Kumar. The said piece of land was sold by registered sale deed dated 11.6.1979 for a total consideration of Rs. 13,000/-. Along with the sale deed, a site-plan was prepared showing the measurement of the land sold with different sides. 3. The aforesaid complaint has been filed against petitioners No. 1 and 2, who are purchasers, petitioner No. 3 Ram Sarup, who was one of the attesting witnesses of the sale deed and petitioner No. 4 Jagdish Rai, who was the Draftsman, who prepared the site-plan of the sold plot and petitioner No. 5 Daljit Singh, who was the Deed Writer. The allegation against all the petitioners is that they have entered into conspiracy with the intention to grab the land measuring 905 Sq. yards and they have knowingly and intentionally prepared a forged site-plan by showing the different sides and not according to the registered sale deed, with the intention to deceive the complainant. Therefore, they have committed the fraud and forgery with the complainant with intention to cause wrongful loss to him. yards and they have knowingly and intentionally prepared a forged site-plan by showing the different sides and not according to the registered sale deed, with the intention to deceive the complainant. Therefore, they have committed the fraud and forgery with the complainant with intention to cause wrongful loss to him. According to the allegation, in the southern side of the sold plot, the property of Ram Murti has been shown, whereas instead of the property of Ram Murti, it should have been shown as property of M/s Yog Raj & Brothers. Although, in the complaint, it has been mentioned that all the accused in connivance with each other had forged the sale deed and the site-plan with the intention to grab the whole property of the firm measuring 905 Sq. Yards, but, it has not been pointed out in the complaint as to what forgery the accused have committed in the sale deed. 4. In the instant petition, the petitioners have stated that Yog Raj, the real brother of the complainant-respondent No. 2, who executed the sale deed in favour of petitioner Nos. 1 and 2 earlier, filed a similar complaint against the petitioners with the similar allegations in the court of Judicial Magistrate Ist Class, Ludhiana, on 15.4.1993, a copy of which is annexed with the petition as Annexure P-5. In support of the said complaint, Yog Raj- complainant had examined three witnesses and produced 14 documents to establish the alleged forgery. The learned Judicial Magistrate Ist Class, Ludhiana dismissed the aforesaid complainant vide his order dated 31.3.1995, while recording the following findings :- "I have heard the counsel for the complainant and the complaint for the purpose of summoning. Admittedly by way of the evidence on the record by the complainant that the compromise was effected between the parties vide Ex. P-8 on 13.7.90 and it was decided for the demarcation by the Revenue Officer. If this is the case set up by the complainant himself that the compromise was effected and the matter was left for demarcation by the Revenue officials, no criminal intention can be smelt out in such circumstances. Had there been any criminal intention, no compromise would have been entered into by the accused. If this is the case set up by the complainant himself that the compromise was effected and the matter was left for demarcation by the Revenue officials, no criminal intention can be smelt out in such circumstances. Had there been any criminal intention, no compromise would have been entered into by the accused. The other aspect which this Court has been is that the present complaint was filed on 22.4.93 and the compromise was effected on 13.7.90, thus in the worst circumstances the knowledge of sale deed for the complainant is presumed to be since 13.7.90. The complainant is believed by this Court that this fact came to the knowledge about 10 months back. In fact, if the period is to be counted from 13.7.90 in the worst circumstances, the period of knowledge comes out to be near about three years. The complainant has not mentioned and explained the delay. The three years delay in filing the complaint without any circumstances explained cannot be ordinarily taken by the Court. Such long delay is fatal to the case of the complainant. Further the matter in dispute is subject matter involving civil dispute. The filing of the complaint cannot be permitted as a tool to utilize the same against the other party so as to pressurise other party to just touch the feet of the complainant and agree with his demands. Here the present complaint has been filed to use the same as hand tool. The complaint accordingly stands dismissed." 5. Against the aforesaid order passed by the Judicial Magistrate Ist Class, the complainant-Yog Ram filed Criminal Revision No. 9 dated 12.5.1995 in the Court of Additional Sessions Judge, Ludhiana. The said revision petition was dismissed as withdrawn on 20.1.1997, a copy of the said order is annexure as Annexure P-7 with the petition. Thereafter, the complainant-Charanjit Lal filed second complaint on 3.12.1996 in the Court of Chief Judicial Magistrate, Ludhiana, which was referred to the police under Section 156(3) of the Code for investigation. On the basis of the said order, the impugned F.I.R. has been registered by the police. 6. The learned counsel for the petitioners submitted that once the earlier complaint was dismissed then the lodging of the F.I.R. on the same allegations and charging the petitioners for the same alleged occurrence is an abuse of the process of the Court. On the basis of the said order, the impugned F.I.R. has been registered by the police. 6. The learned counsel for the petitioners submitted that once the earlier complaint was dismissed then the lodging of the F.I.R. on the same allegations and charging the petitioners for the same alleged occurrence is an abuse of the process of the Court. He further submitted that the matter in issue and facts of both the complaints are almost similar and identical and once the complaint filed by one of the partners of the firm is dismissed, the second complaint by another partner is not maintainable; and on such complaint, F.I.R. should not have been registered on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221 of the Code or for which he might have been convicted under sub-section (2) thereof. In view of the proviso to Section 300 of the Code, the accused cannot be tried again for second time on the same facts which have already been adjudicated upon by the Court. 7. On merits, it has been submitted that even the bare reading of the F.I.R. does not disclose an offence against the petitioners. The only allegation against them is that they had forged the site-plan attached with the sale deed by showing in the southern side of the sold plot the property of Ram Murti. The learned counsel for the petitioners produced the certified copy of the sale deed as well as the site-plan issued by the Sub-Registrar, Ludhiana, which have been taken on record and marked as Annexure A and Annexure B. He submitted that in the site-plan, the property under sale measuring 565.8/9 Sq.Yards was described by the boundaries as under :- "North : Passage 4 and Charan Singh Ram Parkash etc. to the extent of 128; South : Plot Ram Murti to the extent of 120; East : House Mohan Singh to the extent of 33; West : Plot Hardyal Singh etc. to the extent of 490"." 8. The learned counsel for the petitioners submitted that the same dimension and the boundaries has been mentioned in the site-plan attached to the sale deed. to the extent of 490"." 8. The learned counsel for the petitioners submitted that the same dimension and the boundaries has been mentioned in the site-plan attached to the sale deed. He submitted that no forgery has been committed in the present case and the allegations of forgery against the petitioners are misconceived and without any basis. Therefore, on the face of it, there is no substance in the allegations of the complainant-respondent No. 2 and by taking into consideration all those allegations, no offence could be said to have been committed by the petitioners. He submitted that the case of the petitioners clearly falls in category (3) of the exceptions laid down by the Honble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 Supreme Court 604. 9. On the other land, learned counsel for the respondent No. 2 submitted that at this stage the F.I.R. and the impugned orders of framing of charge (Annexure P-2), the charge-sheet (Annexure P-3) and the order dated 4.2.1998, vide which the application of the petitioners for discharge has been dismissed, cannot be quashed. He submitted that the allegations made in the complaint are required to be gone into by the trial court as the same will be established on the basis of the evidence led by the parties. Therefore, the F.I.R. and the subsequent proceedings cannot be quashed. 10. I have considered the arguments raised by the learned counsel for both the parties and perused the record. 11. I am of the opinion that the continuation of the criminal proceedings against the petitioners is nothing but an abuse of the process of the Court. Admittedly, the firm M/s. Yog Raj & Brothers sold a piece of land to petitioners No. 1 and 2 through its partners Yog Raj and Charanjit Lal by registered sale deed which was duly registered before the Sub Registrar, Ludhiana in presence of the witnesses and the scribe. Once the complaint filed by Yog Raj was dismissed by the Judicial Magistrate Ist Class after recording the preliminary evidence of the complainant and once the said order was confirmed in revision, as the same was dismissed as withdrawn, Charanjit Lal-complainant, who was real brother of Yog Raj, who filed the earlier complaint, cannot file the second complaint on the same set of facts and allegations. The second complaint was filed on 3.12.1996 after dismissal of the first complaint by respondent No. 2 in the Court of Chief Judicial Magistrate, Ludhiana, which was referred to S.H.O., Police Station, Division No. 2 for investigation, in view of the provisions of Section 156(3) of the Code. On the same day, the police lodged the impugned F.I.R., on the basis of the said order. Once the previous complaint was dismissed after considering the preliminary evidence led by the complainants brother Yog Raj, the second complaint on the same facts is not maintainable at all. Even otherwise, I am of the opinion that no case under the aforesaid Sections has been made out against the petitioner on the alleged allegations in the complaint. The only allegation in the complaint is that the petitioners have forged the site-plan attached to the sale deed mentioning the property of the wrong person on the southern side of the sold plot. I have perused the certified copy of the sale deed as well as the site-plan produced by the learned counsel for the petitioners. The boundaries in the site-plan have been shown as per the boundaries mentioned in the sale deed. In the sale deed itself, the boundaries in the southern part have been shown as the plot of Ram Murti. A perusal of the site-plan also shows that the dimension of the sold plot has been given in the sale deed by mentioning the length and width of the plot in feet. If the total area of the plot is calculated on the basis of the said dimension given in the site-plan, then it comes to 565.8/9 Sq.yards, as mentioned in the sale deed. If that is so, then there is no substance in the allegation of respondent No. 2 that by mentioning the wrong dimension in the site-plan, petitioners No. 1 and 2 want to grab their entire land measuring 905 Sq.Yards. I am satisfied that there is no substance in the allegation of respondent No. 2 that the petitioners have committed forgery in the site-plan. I am satisfied that there is no substance in the allegation of respondent No. 2 that the petitioners have committed forgery in the site-plan. Once I found on the face of it that the alleged allegation does not constitute any offence, then according to third exception, as laid down by the Honble Supreme Court in the case of Bhajan Lal (supra), the F.I.R and the subsequent proceedings amount to abuse of the process of the Court and the same are liable to be quashed. 12. I find no force in the conclusion of the learned counsel for the respondents that once the charge has been framed, this Court would not be justified in quashing the F.I.R. and proceedings. Recently this Court in Lakhwinder Singh v. State of Punjab, 2000(4) RCC 424, after considering the various judicial precedents of this Court and of Honble Apex Court, has held as under :- "It thus, becomes fairly evident that the courts have consistently put an end to criminal proceedings which are an abuse of the process of Court. At the initial stage, at the summoning stage and even after charges have been framed, the High Court has the inherent power to quash proceedings and to pass such orders as are necessary to prevent abuse of the process of any court or otherwise to secure ends of justice. Section 482 of the Code of Criminal Procedure contains a non-obstante clause to the effect that nothing in the Code of Criminal Procedure shall be deemed to limit the powers of the High Court to prevent abuse of the process of Court. Therefore, filing of the charge sheet in Court does not in any manner affect the amplitude of the wholesome jurisdiction of the High Court under Section 482 Code of Criminal Procedure. The only rider being, that greater the power, greater the care and caution in exercise thereof." In view of the aforesaid discussion, I allow the Criminal Misc. petition and quash the order dated 10.3.1998 (Annexure P-2) of framing the charge against the petitioners, the charge-sheet dated 10.3.1998 (Annexure P-3) and the order dated 4.2.1998 (Annexure P-4). Petition allowed.