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2007 DIGILAW 1979 (PNJ)

Surinder Singh v. State of Punjab

2007-11-14

H.S.BHALLA

body2007
JUDGMENT H.S. Bhalla, J.:-Through this petition filed under Section 482 of the Code of Criminal, the petitioner has prayed for quashment of protest petition dated 24.4.2002 (Annexure P-5) filed by respondent No.2 against cancellation report submitted by the Investigating Officer in FIR No. 37 dated 6.6.2001 registered under Sections 419/420/467/471 and 120-B of the Indian Penal Code in Police Station Raikot, district Ludhiana. The petitioner has further prayed for quashing the order dated 4.9.2002 (Annexure P-6) whereby the protest petition filed by respondent No.2 has been treated as a complaint as also the summoning order dated 5.2.2005 (Annexure P-8) passed by trial Magistrate, whereby the petitioner has been summoned to face a trial. 2. The facts required to be noticed for the disposal of this petition are that on an application moved by complainant-respondent No.2 against the petitioner, a case was registered against him under Sections 419/420/467/471 and 120-B of the Indian Penal Code in Police Station Raikot alleging therein that a will was executed by Smt. Kuro in favour of Balwant Kaur daughter of Mohinder Kaur on 17.1.1990, which is the subject matter of litigation between the complainant and the petitioner. It has been further averred in the petition that on a case being registered against the petitioner for the aforementioned sections of the Indian Penal Code, matter was investigated by the police and on the basis of which, a cancellation report was prepared and forwarded to the Deputy Superintendent of Police, who, in turn forwarded the same to the Senior Superintendent of Police for obtaining his concurrence and thereafter the same was submitted before the trial Magistrate. Respondent No.2 filed a protest petition dated 24.4.2002 against the cancellation report submitted by the Investigating officer. The trial Magistrate, vide order dated 4.9.2002 ordered the protest petition to be treated as a complaint case and the statement of the complainant was recorded. On the basis of the statements of the complainant and his witnesses, the trial Magistrate vide order dated 5.2.2002 summoned all the accused persons named in the FIR to face trial under sections 419/420/467/471 and 120-B of the Indian Penal Code, a copy of which is annexed with the petition as Annexure P-8. 3. I have heard learned counsel for the parties and have also gone through the record of the case minutely. 4. 3. I have heard learned counsel for the parties and have also gone through the record of the case minutely. 4. Having heard learned counsel for the parties and going through the record of the case, I am of the considered view that this petition has got merit and the same is liable to be accepted for the reasons to be recorded hereinafter. 5. A perusal of the record shows that basically the dispute between the parties is of civil nature which revolves around the execution of the will dated 17.1.1990 executed by Smt. Kuro in favour of Balwant Kaur daughter of Mohinder Kaur on 17.1.1990. The said will was challenged before the civil court wherein Balwant Kaur wife of Surinder Singh (petitioner herein) could not prove that the will was ever executed in her favour. On an appeal filed by Balwant Kaur, the finding recorded by the trial court that Balwant Kaur has not been able to prove that the will was executed in her favour by late Kuro was affirmed. Thereafter Banso @ Harbans Kaur (respondent No.2) along with Smt. Mohinder Kaur entered into a compromise with the petitioner on 5.5.2003, whereby they sold the property jointly for a sum of Rs.15,16,000/- to Pushpinder Singh son of Balbir Singh, concealing the factum of having filed a protest petition dated 24.4.2002 before the trial Magistrate. Record further spells out that an affidavit was sworn by Mohinder Kaur, Paramjit Singh husband of complainant respondent No.2 Banso alias Harbans Kaur and also the power of attorney of Smt. Banso alias Harbans Kaur and Darbara Singh mentioning therein that the case which was pending between the parties had been withdrawn. Record further spells out that Smt. Balwant Kaur is the wife of the petitioner. She is a beneficiary under the will, whereas the petitioner is her husband and he is not the beneficiary; he has been falsely implicated in the present case. Record further spells out that Smt. Balwant Kaur is the wife of the petitioner. She is a beneficiary under the will, whereas the petitioner is her husband and he is not the beneficiary; he has been falsely implicated in the present case. That part, at the time of execution of the sale deed i.e., on 5.5.2003 all the three sisters, namely, Banso, Mohinder Kaur and Bibo had got recorded in the sale deed that the cases which had been pending have been withdrawn On these premises, learned counsel appearing for the petitioner has vehemently argued that once the property has been sold jointly by all the legal heirs of Smt. Kuro, including respondent No.2 and there remains no dispute inter se the parties, the protest petition filed by complainant-respondent No.2 concealing the factum of compromise in which she has entered, as also the joint sale by the parties has got no sanctity being not sustainable in the eye of law, the same is liable to be quashed on this ground alone. 6. Learned counsel has further valiantly argued that the learned trial Magistrate has erred in law in treating the protest petition as a complaint case, which has lost its significance in view of the contention noted above, inasmuch as it is the discretion of the learned trial Magistrate either to accept or not to accept the cancellation report submitted by the police, but at the same time, if respondent No.2 was dissatisfied she could file a separate criminal complaint under the provisions of the Code of Criminal Procedure and in such like circumstances, the learned counsel submitted that the learned Magistrate ought to have dismissed the protest petition. I find considerable force in the contention raised by the learned counsel that complainant has got no right to prosecute the petitioner on the basis of the protest petition (Annexure P-5) especially when she had entered into a compromise and had sold the property by way of sale deed executed on 5.5.2003 and also got the factum of compromise recorded in the sale deed, but concealing the factum of protest petition cleverly therein with the sole motive to harass the petitioner. In such like circumstances, I am of the considered view that complainant-respondent No.2 concealed the factum of protest petition in the compromise as well as in the sale deed executed on 5.5.2003 between the parties and the approach of the learned trial Magistrate in summoning the petitioner on the basis of protest petition is not justified and calls for interference by this court. 7. In the light of what has been discussed above, I am of the view that the petition filed by the petitioner has got merit and as such the same is allowed setting aside the protest petition dated 24.4.2002 (Annexure P-5) filed by respondent No.2 against the cancellation report submitted by the police in FIR No.37 dated 6.6.2001 registered under sections 419/420/467/471 and 120-B of the Indian Penal Code in Police Station Raikot; order dated 4.9.2002 (Annexure P-6), whereby the protest petition filed by respondent No.2 has been treated as a complaint and summoning order dated 5.2.2005 (Annexure P-8) passed by trial Magistrate, whereby the petitioner has been summoned to face trial and other criminal proceedings relating to the aforementioned FIR qua the petitioner. However, it is made clear that if respondent No.2 feels aggrieved, she will be at liberty to file a separate complaint against the petitioner. ——————————