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2004 DIGILAW 145 (PNJ)

Ajit Singh v. State of Punjab

2004-02-09

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Ajit SIngh, Harjeet Kaur, Bir Singh, Shingara Singh and Bikramjit Singh the petitioners-accused are seeking quashing of FIR No. 127 date 7.11.2002, under sections 420, 467, 468, 471 and 120-B of the Indian Penal Code (Annexure P5) registered at Police Station Harike, Police District Taran Tarn District Amritsar. 2. The present case was registered on the complaint of one Buta Singh resident of village Alipur, alleging therein the Bikramjit Singh, Sarpanch, his wife Harjit Kaur and Ajit Singh, resident of Village Alipur had transferred his land measuring 19 kanal 16 marlas fictitiously. The matter was inquired into. During the course of enquiry, it was found that there was 12-1/2 acres of land belonging to Jumla Mushtarka Malkan in village Alipur which formed the part of the Patti Alipur. Land of this village was situated at far away places. The proprietors of the village found it difficult to supervise their land as some of the land was located across the river belt. Consequently, a new village was carved out of the revenue estate of village Alipur which came to be known as Ratta Gudda. On partitions of Jumla Mushtarka Malkan land of two villages, the land of the share of Patti Alipur came to be 19 kanal 16 marlas which belong to 76 proprietors of the village. As the proprietors had a small share of holding in this land, which was earlier in possession of Sucha Singh, Buta Singh after becoming Sarpanch of the village in the year 1985, got a document executed on 20.3.1986 in his favour and became the tenant in possession of the said land. He got the entries of khasra girdawari incorporated in his own name. He also did not pay rent to any of the proprietors in respect of the said land. Rather he gave this land to Gurmukh Singh resident of village Ratta Gudda for cultivation. Hari Singh son of Tara Singh, who was one of the proprietors of the village, had shifted to village Kili Gudda, Police Station Makhu, District Ferozepur. He died on 3.1.1989 in village Kili Gudda. Hardip Singh son of Hazara Singh, the other proprietor of the village had also shifted his residence to village Kamalwala Kalan, Police Station Mallanwala Kalan, District Ferozepur. He died on 24.10.1974 in village Kamalwala Kalan. He died on 3.1.1989 in village Kili Gudda. Hardip Singh son of Hazara Singh, the other proprietor of the village had also shifted his residence to village Kamalwala Kalan, Police Station Mallanwala Kalan, District Ferozepur. He died on 24.10.1974 in village Kamalwala Kalan. On 6.6.1994 Jagir Singh son of Bishan Singh and 75 other persons, the proprietors of the above mentioned land, were stated to have executed a power of attorney in favour of Ajit Singh in order to sell the same. Signatures and thumb impression of 76 proprietors were obtained on the said power of attorney. Despite the fact that Hari Singh had died on 3.1.1989, his name was entered at serial No. 54 of the power of attorney as one of the proprietors and a party to the document having appended his thumb impression. Similarly, name of Hardip Singh, who had died on 24.10.1974, and was one of the proprietors, was too entered in the same power of attorney showing that the had also executed this document by putting his thumb impression on it. On the basis of the said power of attorney, Ajit Singh executed the sale deed dated 9.9.1994 on behalf of all the proprietors of the village in favour of Harjit Kaur resident of village Pahuwind for a consideration of Rs,. 90,000/-. The consideration amount was stated to have been distributed amongst the proprietors. The said Buta Singh was stated to have further sold this land to Gurmukh Singh for a consideration amount of Rs. 5 lac and had delivered the possession of the same. Harjit Kaur was not found to be in cultivation possession of the said land. 3. When the case was at the stage of initial investigation, the present petitioners and one Chuhar Singh son of the Tehal Singh had filed a Criminal Misc. No. 2106-M of 2003 for the quashing of the present FIR and the same was dismissed by a detailed order of this Court dated 17.1.2003. The records of the said petition are added and I have perused the same. 4. Thereafter the second petition bearing Criminal Misc. No. 2106-M of 2003 for the quashing of the present FIR and the same was dismissed by a detailed order of this Court dated 17.1.2003. The records of the said petition are added and I have perused the same. 4. Thereafter the second petition bearing Criminal Misc. No. 3776-M of 2003 was also filed for the same relief praying therein that the investigation is still continuing and that certain affidavits have been tendered by Bakshish Singh son of the Hardip Singh, Resham Singh son of Hari Singh and Lakhbir Kaur widow of Gursewak Singh and in case the said affidavits are taken into consideration, no offence as alleged would be made out against the present petitioners. The said petition was dismissed by this Court on 4.4.2003 observing that the said Affidavits cannot be considered for the purpose of quashing at that stage. It was further observed that the petitioners may move an application before the concerned police authorities for reinvestigation of the case on the basis of the said affidavits. However, in the said petition Chuhar Singh had not joined hands. 5. This is the third petition for the quashing of FIR on the ground that before the present petitioners could move an application for reconsidering/reinvestigating the case of the prosecution on the basis of the aforesaid affidavits, the challan was already filed in the concerned court and the same be now considered. 6. I have heard Mr. D.S. Pheruman, learned counsel for the petitioners at length and have also perused the entire record. 7. Learned counsel contends that although the earlier petition for the same relief was dismissed on merits, yet there is no bar for the entertaining of the second petition for the same relief on the basis of certain changed circumstances. In support of his contention, he relies upon Girish Kakkar and anr. v. Dr. (Mrs.) Dhanwanti and ors., 1990(3) RCR 448. 8. Learned counsel does not press the present petition on behalf of petitioner No. 5 and states that the same may be dismissed qua him. However seeking quashing of FIR on behalf of petitioner Nos. In support of his contention, he relies upon Girish Kakkar and anr. v. Dr. (Mrs.) Dhanwanti and ors., 1990(3) RCR 448. 8. Learned counsel does not press the present petition on behalf of petitioner No. 5 and states that the same may be dismissed qua him. However seeking quashing of FIR on behalf of petitioner Nos. 1 to 4 he mainly contends that there is no allegation that 76 person did not sign or thumb marked the power of attorney and this fact indicates that the said power of attorney dated 6.6.94 Annexure P/1 which is in favour of Ajit Singh petitioner, is in fact a genuine once. It is then contended that the allegation in the FIR is that two persons namely Hari Singh son of Tara Singh resident of village Killi Gudda and Hardip Singh son of Hazara Singh both of district Ferozepur had died earlier and some persons by impersonation got the power of attorney on their behalf. According to the learned counsel no one from the near relation of the aforesaid two persons have ever challenged the power of attorney and that the legal heirs of aforesaid Hardeep Singh have already received the consideration. 9. Relying heavily on the affidavits Annexures P6 and P7, the learned counsel now contends that Bakhshish Singh and Resham Singh who were legal heirs of Hardip Singh and Hari Singh have now filed their affidavits and have stated that they have no grievance regarding the same as they have already received their share which was due to them. Similarly Lakhbir Kaur widow of Gursewak Singh son of Hardip Singh has also tendered an affidavit which is Annexure P/8. The contention is that in case these affidavits are taken into consideration, the present petitioners would be absolved of the alleged offence. The present FIR qua them is, thus, liable to be quashed. 10. So far as the entertainment of the present petition is concerned, I do no dispute the legal position settled in Girish Kakkars case (supra) and am hearing the learned counsel once again on merits. However, I do not agree with the contentions advanced by the learned counsel for the petitioners. After completing the investigation, the challan has since been filed. So far as the entertainment of the present petition is concerned, I do no dispute the legal position settled in Girish Kakkars case (supra) and am hearing the learned counsel once again on merits. However, I do not agree with the contentions advanced by the learned counsel for the petitioners. After completing the investigation, the challan has since been filed. Even otherwise the entire facts of the present case, prima facie would indicate that Hari Singh and Hardeep Singh were dead at the time when power of attorney dated 6.6.94 was stated to have been executed by the proprietors of the village in favour of Ajit Singh. In this eventuality, Ajit Singh had no right to transfer the land to the extent of their share by the sale deed dated 9.9.94. What is the effect of the subsequent transfer of the land is not to be gone into at this stage. The affidavits Annexures P/6 to P/8 on which the present petitioners are relying heavily cannot be termed as evidence without being tested or proved. In my considered view that this is a matter for consideration at the time of trial and not at this stage. It is settled preposition of law that while exercising jurisdiction under section 482 Criminal Procedure Code it is not permissible for the court to act as if it was a trial Judge. Even at the stage of framing of charge, the court has to only prima facie to be satisfied about the existence of sufficient ground for proceedings against the accused. For that limited purpose, the court may evaluate the material and documents on record but cannot appreciate the evidence. To strengthen my view, I may refer to Chand Dhawan (Smt.) v. Jawahar Lal and Ors., 1992(3) RCR(Crl.) 534 (SC) and a latest judgment of Honble Apex Court rendered in State of Madhya Pradesh v. Awadh Kishore Gupta and Ors., 2004(1) RCR(Crl.) 233. When the aforesaid factual position of the instant case is considered in the light of the principles of law, highlighted in aforesaid decisions of the Honble Apex Court, the inevitable conclusion is that the present petitioner fails being devoid of any merit in it. Resultantly, the present petition is dismissed. Petition dismissed.