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2005 DIGILAW 884 (PNJ)

Baldev Singh v. State Of Punjab

2005-08-22

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. This order shall dispose of Crl. Misc. No.34104-M of.2003 and Crl. Misc. No.3767-M of 2003, as both the petitions arise from the same complaint. 2. The petitioners, by way of the present petitions, filed, under Section 482 of the Cr. P. C. pray for the quashing of the complaint, titled as "atma Singh V/s. Baldev Singh and others", filed under Sections 420/467/468/471/120-B of the ipc, (Annexure P-1), pending before the sub Divisional Judicial Magistrate, Baba bakala, and the summoning order, dated 1.7.2003 (Annexure P-2), passed by the sub Divisional Judicial Magistrate, Baba bakala. 3. The facts, that have led to the filing of the president petitions, are briefly narrated hereinafter. 4. The petitioners and the complainant are closely related. Baldev Singh (petitioner in Crl. Misc. No.34104-M of 2003) and Sukhdev Singh, Lakhbir singh, Sukhdev Singh and Raghbir Singh (petitioners No.2 to 5 in Crl. Misc. No.37367-M of 2003) are the sons of Mangal Singh. Atma Singh, the complainant, is the real uncle of the aforementioned individuals. Satnam Kaur (petitioner No.6 in Crl. Misc. No.37367-M of 2003) is the wife of Baldev Singh (petitioner in Crl. Misc. No.34104-M of 2003 ). 5. As per the averments, made in the petitions, the complainant, who is a close relative and was living with the petitioners, executed a general power of attorney, before the Sub Registrar on 16.2.2000 (Annexure P-3 ). The general power of attorney was thumb marked by the complainant and witnessed by Gurdip singh, Lambardar of village Karalian and sukhdev Singh (petitioners No.1 and 2 in Crl. Misc. No.37367-M of 2003 ). 6. It is further alleged that for reasons, best known to the complainant, he filed a criminal against the petitioners in the Court of Sub Divisional Judicial magistrate, Baba Bakala, pleading therein that the general power of attorney had been prepared by fraud and impersonation. The complainant never appeared before the Sub Registrar and the petitioners produced some other person, who impersonated the complainant, affixed thumb impressions on the general power of attorney, which were passed off as the thumb impressions of the complainant. By using the aforementioned general power of attorney, Baldev Singh executed three sale deeds on 21.2.2000 in favour of Lakhbir Singh, Sukhdev singh, Raghbir Singh and Satnam Kaur. The matter was reported to the police, whereupon a compromise was affected on 26.2.2000. By using the aforementioned general power of attorney, Baldev Singh executed three sale deeds on 21.2.2000 in favour of Lakhbir Singh, Sukhdev singh, Raghbir Singh and Satnam Kaur. The matter was reported to the police, whereupon a compromise was affected on 26.2.2000. On the basis of this compromise, the complainant was persuaded not take any action against the petitioners, as they confessed to the alleged crime and signed the compromise. The petitioner executed two registered sale deed dated 1.3.2000 showing that the complainant had purchased land measuring 14 kanals 16 marls from Lakhbir Singh and Sukhdev Singh. However, they surreptitiously prepared a cancellation deed dated 1.3.2000, thus, manipulating the entire matter. The complainant preferred an application before the police authorities. As no action was taken, he filed a complaint on 21.10.2000. During the pendency of the complaint, the complainant sought to produce an expert to prove that the thumb impressions, appearing on the general power of attorney, were not his. On 10.7.2001. Ex. C7, Mark A, was tendered and the case was adjourned. Thereafter, the matter was reeatedly adjourned, at the request of counsel for the complainant. Eventually, on 28.10.2001, an application, under Sec.311 Cr. P. C. , was filed for examination of a Finger Print Expert, which application was allowed. However, on 12.2.2002, the complaint was dismissed in default, as the complainant did not put in appearance. 7. On 26.2.2002, the complainant filed another complaint, subject matter of the present petitions, levelling identical allegations. The only difference being that in the second complaint, the complainant alleges that his thumb impressions had been obtained on blank papers by misrepresentation for preparation of a new ration card and voters list. These blank papers were used to prepare a general power of attorney in order to alienate the complainants property. The other allegations are the same. 8. After recording of preliminary evidence, the petitioners were summoned by the Sub Divisional Judicial magistrate, Baba Bakala, vide order dated 1.7.2003 (Annexure P-2 ). 9. Counsel for the petitioners contends that the first complaint was dismissed on 12.2.2002 for non-appearance of the complainant. Immediately, thereafter, the complainant filed a second complaint levelling allegations with respect to the same power of attorney but without disclosing the filing and dismissal of the first complaint. It is further contended that both complaints, pertain to an alleged forgery of a general power of attorney, by the petitioners. Immediately, thereafter, the complainant filed a second complaint levelling allegations with respect to the same power of attorney but without disclosing the filing and dismissal of the first complaint. It is further contended that both complaints, pertain to an alleged forgery of a general power of attorney, by the petitioners. However, in the first complaint, the complainant specifically alleges that the thumb impressions, appearing on the general power of attorney, were not his. Some other person was produced, who impersonated the complaint. In the second complaint, he alleges that the thumb impressions are his but were obtained on blank papers, by misrepresentation. The complainant was informed that his thumb impressions were required for the preparation of a new ration card and voter identity card but instead the petitioners prepared a general power of attorney. It is further contended that in proceeding regarding the first complaint, the complainant sought to produce an expert, in support of his positive case that the thumb impressions on the general power of attorney were not his. However, when he realised that the expert was likely to depose that the thumb impressions were of the complainant, he immediately absented himself from Court, leading to the dismissal of the first complaint and thereafter, filed the second complaint alleging that this thumb impressions had been obtained on blank papers. It is contended that this significant contradiction between the two averments is sufficient to quash the complaint. 10. Counsel for respondent No.2 (complainant), on the other hand, contends that the complainant is a simple man, who has been deprived of his property by the petitioners. There is no bar in law to the filing of a second complaint, on the same set of facts. The order of summoning is based on evidence led by the complainant, after due consideration thereof and, therefore, does not warrant quashing. It is further contended that as the first complaint was dismissed for non-prosecution and not on merits, there was no bar to filing of a second complaint. When the complainant realised that the first complaint had been filed on erroneous fact, namely, that the general power of attorney had been created by impersonation, he filed the second complaint. In this view of the matter, the second complaint, being based on fresh facts, was maintainable. The non-disclosure of the first complaint is a mere irregularity, which cannot be used to dismiss the second complaint. In this view of the matter, the second complaint, being based on fresh facts, was maintainable. The non-disclosure of the first complaint is a mere irregularity, which cannot be used to dismiss the second complaint. 11. I have heard learned counsel for the parties and perused the record. 12. The complainant filed Criminal complaint No.158 of 2000 on 21.10.2000 in the Court of Sub Divisional Judicial magistrate, Baba Bakala, specifically pleading therein that the general power of attorney, dated 16.2.2000 (Annexure p-3) was forged by the petitioners, as the complainant had never appeared before the Sub Registrar for executing any power of attorney. It was specifically alleged that the petitioners appeared before the sub Registrar and some other person impersonating the complainant, affixed thumb impressions on the general power of attorney. The complainants positive case was that he had not affixed any thumb impressions on the general power of attorney. During the pendency of this complaint, and at the behest of the complainant, his specimen thumb impressions were obtained in Court, vide order dated 26.6.2001, for comparison with the thumb impressing appearing on the general power of attorney. On 10.7.2001, preliminary evidence was closed. On 28.10.2001, the complainant filed an application, under Sec.311 Cr. P. C. for examination of a finger print expert. The application was allowed on the same day and the case was adjourned to 11.12.2001, on which date, it was adjourned to 12.2.2002. On 12.2.2002, nei-ther the complainant nor his counsel put in appearance and the complaint was dismissed in default for want of prosecution. 13. On 26.2.2002, the complainant filed a fresh complaint, under Sections 420/467/468/471/120-B of the IPC, before the Sub Divisional Judicial Magistrate, baba Bakala, regarding the forgery of the very general power of attorney, which was subject matter of the earlier complaint. 14. In order to place the present controversy, in its true perspective, it would be necessary to reproduce the relevant paragraphs of the two complaints, which narrate the allegations against the petitioners. Para 3 of the first complaint (Annexure P-4) reads as follows :- " 3. That the accused No.1 in order to usurp the share of the complainant in the joint land forged a general power of attorney dated 16.2.2000. which is shown to be witnessed by the accused Gurdip Singh, lamberdar and Sukhdev singh. Para 3 of the first complaint (Annexure P-4) reads as follows :- " 3. That the accused No.1 in order to usurp the share of the complainant in the joint land forged a general power of attorney dated 16.2.2000. which is shown to be witnessed by the accused Gurdip Singh, lamberdar and Sukhdev singh. The general power of attorney was got attested from the Sub Registrar, Baba bakala, District Amritsar on the same day i. e.16.2.2000. This general power of attorney was infact typed by Harjit singh Bhullar, accused who is working as Deed Writer in the tehsil office, Baba Bakala, District Amritsar. All these accused personally knew Atma singh, complainant and they intentionally and knowingly forged the general power of attorney inspite of the fact that they knew that it is not being executed by the complainant atma Singh. The accused baldev Singh, Gurdip Singh and Sukhdev Singh also appeared before the Sub Registrar, Baba Bakala and falsely represented that this general power of attorney was executed by the complainant Atma singh and in his place produced some other person and got his thumb impression on the back of the general power of attorney and thus prepared forged document in order to alienate the landed property of the complainant to their relatives in order to deprive from its ownership. " Para 3 of the second complaint (Annexure P-1), reads as follows : - "3. That on 16.2.2000, the accused prepared a forged General Power of Attorney, which is shown to be witnessed by gurdip Singh, Lambardar and sukhdev Singh. The first general power of attorney was got attested on 16.2.2000 from the office of Sub Registrar, Baba bakala. This first general power of attorney was prepared by Harjit Singh Bhullar accused, who is a deed writer in tehsil Office, Baba Bakala dist. Amritsar. The complainant is a simple and illiterate person. The complainant never executed any power of attorney dated 16.2.2000 in favour of any body and also did not receive any consideration regarding his land. Baldev singh, Sukhdev Singh, lakhbir Singh, Raghbir Singh, satnam Kaur obtained the thumb impression of the complainant on number of blank papers by concealing the true facts and by misrepresentation that the said thumb impressions are being taken for the preparation of a new ration card and voters list. Baldev singh, Sukhdev Singh, lakhbir Singh, Raghbir Singh, satnam Kaur obtained the thumb impression of the complainant on number of blank papers by concealing the true facts and by misrepresentation that the said thumb impressions are being taken for the preparation of a new ration card and voters list. The accused prepared a forged power of attorney in order to alienate the property of the complainant to their relatives with the intention to cause wrongful loss to the complaint and wrongful gain to themselves. " 15. A perusal of the relevant extracts of the two complaints, reproduced above, reveals that allegations in both complaints pertain to the forgery of a general power of attorney and the subsequent sale of property, belonging to the complainant by using this general powers of attorney. In the first complaint, the allegations are that the general power of attorney was prepared by impersonating the complainant, namely, getting another person to pose as the complaint, affix his thumb impressions on the general power of attorney, and pass them off as the thumb impressions of the complainant. In the second complaint, the facts undergo a material change, as it is alleged that the complainant affixed his thumb impressions on blank papers, obtained with the ostensible purpose of preparing a new ration card and a new voters list. No explanation, whatsoever, is forthcoming for this significant departure from the allegations, contained in the first complaint. In my considered opinion, the contention of counsel for the petitioners that when the complainant realised, during the pendency of the first Complaint, that the finger print expert was likely to depose against him, he absented himself, leading to the dismissal of the complaint, is borne out. The facts, that have been narrated above, in my considered opinion, are clearly indicative of the fact that the complainant, when faced with an inconvenient situation, namely, the possibility of the finger print expert deposing against him, adopted a cynical ploy and to subvert the process of law, absented himself from Court, leading to the dismissal of the first complaint. A mere fortnight thereafter, he filed the second complaint. A mere fortnight thereafter, he filed the second complaint. In the second complaint, the refrain, namely, the general power of attorney, remained unchanged but its substratum underwent a change, from one of impersonation and of the thumb impressions not being of the complainant to one of admitting the correctness of the thumb impressions but pleading that they had been obtained on blank papers by misrepresentation. Once the complainant had levelled positive allegations in the first complaint and deposed that the general power of attorney had been executed by impersonation and the thumb impressions, appearing thereon, were not his, he could not turn around, in the second complaint and averred that though the thumb impressions were his, they had been obtained on blank papers by misrepresentation. The two pleas are mutually contradictory and destructive of one another. This device, adopted by the complainant, in my opinion, is an abuse of the process of law. Litigants cannot be permitted to file complaints on one set of facts and when faced with failure, file a fresh complaint by tinkering with the facts altering the very basis of the allegations. 16. An argument, addressed by counsel for the respondents, must also be noticed. Counsel for the respondents has vehemently urged that the Code of criminal Procedure does not bar the filing of a fresh complaint on the same set of facts. There can be no quarrel with the aforementioned proposition. However, it is settled law that a fresh complaint can only be filed, complaining of the same offence, provided the complainant discloses the filing and dismissal of the first complaint and pleads and prima facie establishes the existence of special circumstances. The failure to plead the filing and dismissal of the first complaint, and the failure to plead and prima facie establish special circumstance would render the second complaint not maintainable and, thus, liable to be quashed. The special circumstances that must be pleaded and prima facie established are that the order dismissing the previous complaint was passed on an incomplete record, a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts, which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. The Honble Supreme Court, in poonam Chand Jain and another V/s. Fazru1, while examining the law with respect to the question of maintainability of a second complaint, though in that case the complaint has been dismissed, under section 203 of the Cr. P. C, held as follows:- "9. As was observed in Mahesh chand V/s. B. Janardhan Reddy and another2, there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reason, the Magistrate under Sec.204 cr. P. C. may take cognizance of an offence and issue process if there is sufficient grounds for proceeding. But the second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings have been adduced. The second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further second complaint on the same facts would be entertained only in exceptional circumstances, namely, where previous order was passed on an incomplete record or on misunderstanding of the complaint or it was manifestly absurd or unjust. " 17. A perusal of the facts of the present case reveal that no special circumstances have been pleaded in the second complaint and, therefore, no evidence, in respect thereof, was adduced to enable the trial Court to return a finding that special circumstances warranted taking cognizance of the second complaint. The absence of any such pleadings or evidence, in my considered opinion, is sufficient to quash the second complaint, in the exercise of powers, under section 482 of the Cr. P. C. 18. Another circumstance, as noticed above, is the absence of any averment in the complaint with respect to the filing and the dismissal of the first complaint. The first complaint was dismissed on 12.2.2002. The second complaint was filed, through the same counsel, on 26.2.2002 but without disclosing the filing and dismissal of the first complaint. P. C. 18. Another circumstance, as noticed above, is the absence of any averment in the complaint with respect to the filing and the dismissal of the first complaint. The first complaint was dismissed on 12.2.2002. The second complaint was filed, through the same counsel, on 26.2.2002 but without disclosing the filing and dismissal of the first complaint. In my considered opinion, this fact is in itself sufficient to hold that the complainant was not only guilty of misleading the court but also guilty of abusing the process of law. A litigant is expected to approach a Court of law by disclosing all relevant facts for and against his plea. Courts of law depend upon the parties to put forth and correct facts. Courts of law have no independent means of ascertaining true facts. Every litigant is obliged to maintain the purity of the stream of justice and not conceal material facts. This obligation is all the more onerous in criminal complaints, as the procedure, leading to the summoning 01 an accused, is based upon evidence, which has not been subjected to the test of cross-examination. The facts and the circumstances of the present case would entail the quashing of the complaint for intentional concealment of a material fact. Disclosure of the filing and the dismissal of the first complaint is all the more significant as cognizance of a second complaint is only permissible on special circumstances as referred to herein before 19. The contention of counsel for the complaint that non-disclosure of the filing and dismissal of the first complaint is a mere irregularity, merits outright rejection A dishonest complainant cannot be permitted to urge that the non-disclosure of the filing and dismissal of the first complaint should be ignored as a mere irregularity If such contentions were to be accepted, it would put a premium on dishonesty, deception and attempts to mislead Courts 20. Another contention, raised by counsel for the complainant, that the first complaint was dismissed, before the passing of the summoning order and, therefore, would have no effect on the second complaint, is, in my considered opinion, an attempt to justify an intentional concealment of material facts Such a concealment cannot and should not be condoned by a Court of law 21. Counsel for the complainant has also raised a plea that the complainant is a simple man and has been deprived of his property by the petitioners, who are his relatives Be that as it may, it does not absolve the complainant of his responsibility and obligation to bring true facts to the notice of the Court Even otherwise, there was no special circumstances pleaded or proved or fresh fact that came into existence, after the dismissal of the first complaint that warranted the filing of a second complaint in view of what has been stated above, the complaint and the summoning order are an abuse of the process of law consequently, the present petitions are allowed, the complaint, titled as atma Singh v Baldev Singh and Others", under Sections 420/467/468/471/120-B of the IPC, (Annexure P-1), pending before the Court of Sub Divisional Judicial magistrate, Baba Bakala, and the summoning order, dated 1 7 2003 (Annexure p-2) are quashed Respondent No 2 - Complainant, however, would be at liberty to seek such remedy as may be available to him, in accordance with law petition allowed