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2004 DIGILAW 272 (HP)

BHAJANA NAND v. STATE OF H. P.

2004-10-11

K.C.SOOD

body2004
JUDGMENT K.C. Sood, J. (Oral): - Jeewan Singh and Jeet Singh, two brothers, were joint owners in possession of the landed property in Tehsil Jubbal in equal shares. Jeet Singh expired in the year 1989, leaving behind his widow Murtu Devi. Even though Jeet Singh was succeeded by his widow Murtu Devi, mutation of inheritance of property, in respect of share of her husband, was attested in favour of Jeewan Singh by the petitioner herein Bhajna nand, who then was Naib Tehsildar. Entry, regarding this mutation, was made by the other petitioner Ram Lal, who then was Patwari. Ram Lal Patwari made an entry to the effect that on the death of Jeet Singh, he is survived only by his brother Jeewan Singh. When this matter came to the notice of the authorities, an enquiry was made which led to filing of the First Information Report with the Police Station, Jubbal. During the course of investigation, it was discovered that Jeet Singh died issueless and mutation of inheritance could only have been attested in favour of his wife and not in favour of his brother Jeewan Singh. 2. When this matter came up before the learned trial Magistrate on 13.5.1999 for trial of the accused, for offences punishable under Sections 167, 218, 219 and 420 read with Section 34 of the Indian Penal Code, it was alleged on behalf of the accused that factum of Jeet Singh having died issueless was verified by the Settlement Naib Tehsildar on 29.6.1989 and Bhajana Nand petitioner attested the mutation only on the basis of verification made by the Settlement Naib Tehsildar and, therefore, no offence can be said to have been committed either by Bhajana Nand or Patwari Ram Lal, who merely made an entry for the attestation of mutation. 3. Learned trial Magistrate in his wisdom, returned the file to the police with a direction, "to ascertain whether mutation in question dated 29.6.1989 was h fact made by the then Naib Tehsildar." 4. On further investigation, a supplementary challan was submitted by the Investigating Officer to the Court. 5. 3. Learned trial Magistrate in his wisdom, returned the file to the police with a direction, "to ascertain whether mutation in question dated 29.6.1989 was h fact made by the then Naib Tehsildar." 4. On further investigation, a supplementary challan was submitted by the Investigating Officer to the Court. 5. The records show that on further investigation of the case it was found that Gian chand the then Settlement Naib Tehsildar merely noticed that Jeet Singh had expired and did not say anything as to who survived him or whether he died, without leaving behind any legal heir, nor did he say that who would succeed to the property left by Jeet Singh. The petitioners were charged with the responsibility to find out who were the legal heirs of the deceased Jeet Singh. I have seen the copy of the report, which was recorded by the Settlement Patwari. It merely noticed that Jeet Singh son of Ram Singh had expired and mutation of inheritance is required to be attested. Learned trial Magistrate accordingly proceeded to charge the accused for offences noticed above. 6. Mr. Verma, learned Senior Advocate for the petitioners strenuously urges that no case of cheating is made out, on the basis of record and, therefore, no useful purpose would be served by prosecuting the petitioners. 7. Having gone through the record and having heard learned Counsel for the petitioners and Mr. Chandel, learned Advocate General, I am of the view that so far Section 420 of the Indian Penal Code is concerned, prosecution of the petitioners is misplaced. However, a prima facie, case is made out against the petitioners for other offences. . 8. Section 420 of the Code is a penal provision, which provides punishment for cheating and dishonestly inducing delivery of property. Cheating is defined in Section 415 of the Code, which reads : "Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so 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". A bare perusal of the above provision shows that to charge a person for cheating, it is necessary to show that such person had fraudulent or dishonest intention at the time of making the promise with an intention to retain the property. In other words, cheating involves deception of any person so as to (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which if he were not so deceived -and which act or omission causes or is likely to cause damage or harm to that person. 9. In the present case, admittedly no deception was practiced by any of the accused on any person including Murtu Devi, who inherited the property left by her husband. Petitioners in this view of the matter, could not have been charged for offence punishable under Section 420 read with Section 34 of the Code. 10. So far offences punishable under Sections 167, 218 and 219 read with Section 34 of the Code are concerned, from the record, prima facie, these offences are made out against the accused for the purpose of framing charge. 11. Section 167 of the Code contemplates incorrect preparation of any record or document or its translation by a public servant knowing that they are incorrect and intending thereby to cause or knowing it to be likely to cause injury or harm to the public or any person. 12. Section 218 of the Code similarly provides punishment for incorrect preparation of record by a public servant, charged with preparation of such record or other writing knowing that such act is likely to cause injury or loss to the public or any person. 13. Section 219 of the Code provides punishment to a public servant, who being a public servant makes corruptly or maliciously any report, order, verdict or decision which he knows to be contrary to law. 14. From the record it is clear, prima facie, that incorrect entry was made by the petitioner Ram Lal Patwari and Bhajana Nand who then was Settlement Naib Tehsildar, charged with responsibility to attest the mutation of inheritance in favour of Jeewan Singh. 14. From the record it is clear, prima facie, that incorrect entry was made by the petitioner Ram Lal Patwari and Bhajana Nand who then was Settlement Naib Tehsildar, charged with responsibility to attest the mutation of inheritance in favour of Jeewan Singh. More so, when the mutation was not attested in the concerned Mohal and he asked Liaq Ram, Lambardar not of the concerned Mohal to identify Jeewan Singh, as successor of Jeet Singh. Statement of Liaq Ram, under Section 161 of the Code of Criminal Procedure, shows that Bhajana Nand asked him if he knew Jeewan Singh, to which he replied in affirmative, even though he protested and told Bhajana Nand that mutation of inheritance should be got attested by the concerned Lambardar yet Bhajana Nand did not listen and proceeded to attest the mutation in question. 15. This Court in these proceedings will not either sift the evidence collected by the Investigating Agency or go into merits of the case. It needs no emphasis that jurisdiction of the High Court for quashing of criminal proceedings, under Section 482 of the Code of Criminal Procedure is limited and has to be exercised with great care and circumspection. It is true that High Court would be justified in quashing the proceedings, if it comes to the conclusion that allowing the proceedings to be continued would be an abuse of the process of the Court and ends of justice require the quashing of proceedings. See (Meena Kumari and others v. Tutsi Ram, Latest HLJ 2002 (HP) 154 : 2002(2) Cur. L. J. (H.P.) 504. 16. In the present case, by no stretch it can be said that trial of the accused under Sections 167, 218, and 219 read with Section 34 of the Code, on the basis of the material on record, would be exercise in futility and cause of the process of the court. 17. In result the petition is partly allowed. So far charge against the accused for offence punishable under Section 420 read with Section 34 of the Code is concerned, it being not based on the material on record, is quashed. However, prosecution shall proceed against the accused for offences punishable under Sections 167, 218 and 219 read with Section 34 of the Code in accordance with law. 18. Petitioners shall appear before the learned trial Magistrate on 23rd November, 2004. 19. However, prosecution shall proceed against the accused for offences punishable under Sections 167, 218 and 219 read with Section 34 of the Code in accordance with law. 18. Petitioners shall appear before the learned trial Magistrate on 23rd November, 2004. 19. Any observation made herein shall not be construed to be an observation on the merits of the case, which indeed shall be decided by the learned trial Magistrate at its own merit. 20. Records shall be remitted to the court of learned trial Magistrate forthwith by the Registry, so as to reach the court before 15th November, 2004.