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2007 DIGILAW 242 (PNJ)

Ashwani Mittal v. State of Haryana

2007-02-09

MAHESH GROVER

body2007
JUDGMENT Mahesh Grover, J. (Oral):-This is a petition under Section 438 of the Code of Criminal Procedure praying for release of the petitioner on bail in an offence registered vide FIR No.567 dated 11.12.2005 under Sections 406/452/323/506/420 of the Indian Penal Code with Police Station Sector 5, Panchkula. 2. A complaint was filed by Gian Devi, the mother-in-law of the petitioner before the Chief Judicial Magistrate, Panchkula, who in exercise of powers under Section 156(3) of the Code of Criminal Procedure got the FIR registered under the aforesaid provisions of law. The allegations of the complainant were that she is an old widowed lady aged about 80 years and is resident of House No.1134 Sector 10, Panchkula of which her deceased husband Khushi Ram was the owner. He is said to have expired on 27.8.2002 leaving behind three sons and two daughters, besides her. It was further stated in the complaint that her sons and daughters had been visiting her frequently after the death of her husband. Her younger daughter Anu Mittal, who is living at Mani Majra, U.T. Chandigarh had also been visiting her often and used to stay with her for days together. On a few occasions, the complainant had expressed her desire to execute a Will in respect of the house in question in favour of her sons and daughters. The petitioner and his wife Anu Mittal colluded with each other and hatched a conspiracy and fraudulently got signed some papers from her in the office of Sub Registrar, Panchkula on 21.5.2004 on the pretext of getting a Will registered but instead got a sale deed executed in favour of the petitioner, her son-in-law. The complainant kept labouring under the impression that she had executed a Will in favour of her sons and daughters and was oblivious of the fraud committed upon her. She made repeated demands for the supply of copy of the Will which was not given to her and her plea was put off on one pretext or the other. She became suspicious and asked her other children to inquire about the matter upon which she came to know about the alleged sale deed. Thereafter she along with other relatives tried to persuade the petitioner to get the sale deed cancelled but he refused to do so and threatened them of dire consequences. She became suspicious and asked her other children to inquire about the matter upon which she came to know about the alleged sale deed. Thereafter she along with other relatives tried to persuade the petitioner to get the sale deed cancelled but he refused to do so and threatened them of dire consequences. The complainant was constrained to file a civil suit to nullify the effect of the sale. On 7.12.2005 the petitioner along with the help of some miscreants illegally and forcibly entered her house and turned her out, along with her belongings. Her valuables and jewelery items were also forcibly taken away and the petitioner has since refused to return the same. The matter was brought to the notice of the police which took no action and ultimately the complainant had to file a complaint and with the intervention of the Court the FIR was registered. 3. The petitioner approached the Court of Addl. Sessions Judge, Panchkula for grant of anticipatory bail which was declined. Thereafter he filed Crl.Misc.No.4316-M of 2006 which was disposed of on 20.3.2006. 4. During the course of hearing of the petition a compromise had been effected between the parties, the terms of which are as follows: 1. That the sale deed allegedly executed by the First Party in favour of the Seventh Party on 21.5.2004 shall stand cancelled forthwith. The Party No.7 shall take necessary steps for the purpose with the active cooperation of the First Party. Similarly, the Will, registered before the Sub Registrar, Panchkula shall also stand cancelled. The First Party shall henceforth continue to be the undisputed owner in possession of House No .1134, Sector 10, Panchkula. 2. That the First Party shall take the necessary steps to withdraw/cancel FIR No.567, dated 11.12.2005, under Section 406, 452, 323, 506 and 420 of I.P.C. Police Station, Sector 5, Panchkula or shall take other steps as per the law to get the FIR quashed against the Parties Nos.6 and 7. 3. That the First Party shall not transfer, alienate, exchange, gift or mortgage the House No.1134, Sector 10, Panchkula in favour of any other person. She will not take any loan against the aforesaid house. 4. That the First Party shall be in exclusive possession of the House aforesaid and no other party shall interfere in her peaceful possession of the same. She will not take any loan against the aforesaid house. 4. That the First Party shall be in exclusive possession of the House aforesaid and no other party shall interfere in her peaceful possession of the same. However, the parties to this Deed shall be at liberty to visit the Party No.1 as per her convenience. 5. That the Parties Nos.2 to 6 shall pay a monthly allowance of Rs.1,000/- (Rupees one thousand only) per month each, to the Party No.1 by Accounts Payees Cheque on or before the 5th of each Calendar month. No payment in cash shall be accepted. Under unavoidable circumstances, payment could be given in cash against proper receipt. 6. That the parties to this Deed shall maintain harmonious relations with each other specifically with the Party No.1. It is expected that the parties Nos.2 to 6 shall take good care of the Party No.1 and ensure that her medical needs are met with, as and when required.” The petitioner did not abide by the terms of the compromise and approached the Hon’ble Supreme Court of India by way of Crl. Appeal No.896 of 2006 which was disposed of with the following observations: “Having heard learned counsel for the parties we are of the opinion that the application for grant of anticipatory bail filed by appellant No.1 herein should be considered strictly on merits without in any way being influenced by the purported undertakings given before the High Court by the appellants. The impugned order is set aside and the High Court is requested to consider the matter afresh in accordance with law. The appeal is allowed accordingly.” 5. Accordingly the matter was taken up for hearing pursuant to the aforesaid observations of the apex court. 6. It was contended by the learned counsel for the petitioner that he is the son-in-law of the complainant and after the death of Khushi Ram there was nobody to take care of the complainant who had been abandoned by rest of the family members. It was he and his wife who had been taking care of her and had been spending exorbitant sums on her health. The Will was an expression of her gratitude towards the petitioner. The sale deed was executed voluntarily by the complainant and the Sub Registrar had also recorded his satisfaction after reading over the contents of the sale deed to the complainant. The Will was an expression of her gratitude towards the petitioner. The sale deed was executed voluntarily by the complainant and the Sub Registrar had also recorded his satisfaction after reading over the contents of the sale deed to the complainant. There was thus no occasion for committing a fraud which has been alleged in the complaint. 7. On the other hand, the complainant and her counsel have submitted that she had been duped by her son-in-law and she has been deprived of the only house which she had as a result of fraudulent action of the petitioner. No amount was ever paid to her. It is also stated that she had l1ferely been told that the Will was to be registered in favour of her children. Apart from the sale deed, which was got fraudulently registered on the pretext of getting a Will executed, no other document was ever executed by her. Her signatures had been obtained fraudulently. 8. The learned counsel for the State also opposed the bail application of the petitioner to say that the recovery of the documents i.e. the sale deed as also the source of money allegedly paid at the time of execution of the aforesaid sale deed has to be traced out. Besides, some other documents such as the original Will, etc. have also to be recovered from the petitioner and therefore his custodial interrogation is essential. 9. I have heard the learned counsel for the parties at length and have perused the record. 10. The case of the petitioner is that he had purchased this house from the complainant after paying an amount of Rs.6,59,000/-. Before the execution of the sale deed a Will had been executed allegedly by the complainant on 3.3.2003.If the aforesaid factum of the execution of the Will is to be believed as an voluntary expression on the part of the complainant, then there was hardly any occasion for her to have executed the sale deed and deprive herself of the sole security she had in her life time. On a pointed question as to whether the petitioner could explain and show from where he had paid the amount of Rs.6,59,000/-, the counsel for the petitioner could not satisfactorily give any answer. On a pointed question as to whether the petitioner could explain and show from where he had paid the amount of Rs.6,59,000/-, the counsel for the petitioner could not satisfactorily give any answer. It is not conceivable that such a huge amount would have beep paid in cash to the complainant, who is 80 years, without there being any track record of the source of origin of the amount so paid. The suspicion is further strengthened from the fact that no amount was paid before the Sub Registrar. The Will itself does not inspire any confidence as the beneficiary was an active participant and it led to an accelerated sale of the house in favour of the petitioner himself. All these facts clearly are suggestive of the fraud which has been perpetrated upon the complainant. The petitioner has clearly tried to usurp the property. The allegations against him are serious. The contention of the learned counsel for the State that custodial interrogation of the petitioner is essential to trace, out the source of money if paid and the recovery of the sale deed as also other documents seems to be justified. Further, the apprehension, of the petitioner tampering with evidence and threatening the complainant, who is an old lady, does not seem to be unfounded. For the reasons stated above, the petition is dismissed. ——————————————