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2009 DIGILAW 33 (PNJ)

Gurlal Singh v. State of Punjab

2009-01-07

K.C.PURI

body2009
JUDGMENT K. C. Puri, J 1. In this Criminal Revision, challenge is to the judgment passed by Shri Gurdial Singh Sandhu, the then Additional Sessions Judge (Adhoc), Fast Track Court, Bathinda in an appeal preferred against the judgment/order dated 4.8.2004/5.8.2004, convicting the petitioner under Section 420 IPC and sentencing him to undergo rigorous imprisonment for one year and also to pay a fine of Rs.2,000/-and in default of payment of fine, to undergo simple imprisonment for two months. Vide the impugned judgment, the said appeal has been dismissed. 2. Tersely, the prosecution case is that on 3.8.2001, the complainant moved an application to the Senior Superintendent of Police, Bathinda, to the effect that he was resident of Amarpura Basti. Gurlal Singh petitioner had taken Rs.28,000/-and agreed to mortgage the house with possession. Mortgage deed was executed but possession was to be delivered, though in the agreement, it was mentioned that possession was delivered at the spot. Said Gurlal Singh requested the complainant that there was marriage in his family and he shall deliver the possession after that. Even after elapse of one year, possession had not been delivered. Upon the application, inquiry was conducted by D.S.P City who had recorded the statements of both the parties and submitted his inquiry report. The opinion of Deputy DA (Legal) was also sought who opined for lodging an FIR under Section 420 IPC. The investigation ensued. The accused was arrested on 10.9.2001. On completion of investigation, challan was presented against the accused under Section 420 IPC. 3. Finding a prima-facie case against the accused, he was charge-sheeted under Section 420 IPC to which he pleaded not guilty and claimed trial. 4. In order to establish its case, the prosecution examined PW-1 Kishore Kumar, PW-2 Laxmi Narain, complainant and PW3 SI Rajinder Singh. 5. After closing the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. He denied the prosecution allegations and pleaded innocence. 6. No evidence was produced by the accused in his defence. 7. After the trial was over, the accused was convicted and sentenced and his appeal was also dismissed, as noticed in the earlier part of judgment. 8. Feeling dis-satisfied, the petitioner has filed the instant Criminal Revision. 9. 6. No evidence was produced by the accused in his defence. 7. After the trial was over, the accused was convicted and sentenced and his appeal was also dismissed, as noticed in the earlier part of judgment. 8. Feeling dis-satisfied, the petitioner has filed the instant Criminal Revision. 9. The learned counsel for the revisionist has submitted that even if the entire allegations of the complainant are taken as correct, in that case, only civil liability is made out. It was a mere transaction of loan of Rs.28,000/-. By securing the said loan, mortgage deed was executed by the accused. It has been contended that law was set into motion by moving an application dated 3.8.2001 by Dr.Lakshmi Narayan to the Deputy Superintendent of Police, Bhatinda. It is mentioned in the application that Gurlal Singh, R.M,Telephone Department has mortgaged his house situated at Shaheed Udham Singh Nagar for a consideration of Rs.28,000/-and writing, to this effect, was executed. It is further mentioned in the application that possession has been given at the spot but when he went to get the possession of the house, the accused put him off on the ground that he will hand over the possession after marriage in their family. About one year had passed, the accused had neither given him possession nor has returned money. Gurlal Singh and his two companions have threatened him that in case he demanded money, his legs would be fractured. 10. It has been contended that from the entire allegations, it is evident that it is no where mentioned that the accused is not the owner of the house in dispute. It has been further contended that in his statement under Section 313 Cr.P.C also, it is no where put to the petitioner that he is not the owner of the house in dispute. Both the Courts below have convicted the petitioner on the ground that he was not the owner of the house and in spite of that, he has agreed to mortgage the same in favour of the complainant. It has been submitted that it is settled law that a fact which is not mentioned in the complaint as well as statement under Section 313 Cr.P.C cannot be read against the accused. It has been submitted that it is settled law that a fact which is not mentioned in the complaint as well as statement under Section 313 Cr.P.C cannot be read against the accused. It has been further contended that the complainant has relied upon document, Exhibit PA/1 vide which Rs.28,000/-were allowed to be taken as loan by the petitioner by agreeing to mortgage the house. It has been further submitted that according to the findings of both the Courts below, Avtar Singh, brother of the petitioner is the owner of the said house. However, no document evidencing that Avtar Singh is the owner of the house has been placed on the file. Moreover, Exhibit PA/1 is signed by Avtar Singh, brother of the petitioner himself and as such he cannot deny the ownership of the accused regarding the house. In case, the entire allegations are taken on their face value, it is merely a breach of term of loan and no criminal liability is made out . In support of his contention, the counsel for the petitioner has relied upon authority in case Nageshwar Prasad Singh alias Sinha, v. Narayan Singh and another, AIR 1999 Supreme Court 1480. 11. In reply to the above noted submissions, the learned counsel for the State has submitted that the petitioner was not the owner of the house in question and in spite of that, he has agreed to mortgage the same and as such the offence of cheating is clearly made out. So, both the Courts below have rightly convicted the petitioner. Mere fact that in the statement under Section 313 Cr.P.C and in the complaint, the above-said fact is not mentioned does not vitiate the trial. So, a prayer has been made for the dismissal of this Criminal Revision. 12. I have carefully considered the submissions made by both sides and have gone through the record of the case. 13. Exhibit, PC, complaint dated 3.8.2001, submitted by Dr. Lakshmi Narayan complainant to the Deputy Superintendent of Police, Bhatinda is the basis of present prosecution. From the bare reading of the said complaint, it is evident that it is no where mentioned in the said complaint that the petitioner is not the owner of the house which has been agreed to be mortgaged with the complainant for a consideration of Rs.28,000/-. From the bare reading of the said complaint, it is evident that it is no where mentioned in the said complaint that the petitioner is not the owner of the house which has been agreed to be mortgaged with the complainant for a consideration of Rs.28,000/-. The complainant, while appearing as his own witness, has stated that he came to know that the said house is not owned by the present petitioner and is owned by his brother Avtar Singh. Similarly, statement made by PW-1 Kishore Kumar is to the effect that he came to know that Avtar Singh is the owner and that the petitioner is not the owner. Both the Courts below have given much importance to those statements. PW-1 Kishore Kumar and PW-2 Lakshmi Narayan complainant have simply stated that from reliable sources, they came to know that the petitioner is not the owner and that Avtar Singh is the owner of the house. It has not been disclosed by PW1Kishore Kumar and PW-2 Lakshmi Narayan as to what are those sources. Both the Courts below have convicted the petitioner only on the ground that he has agreed to mortgage the house in dispute in spite of the fact that he is not the owner. The fact that the petitioner is not the owner is neither mentioned in the initial complaint nor was put to him in his statement under Section 313 Cr.P.C. Both the Courts below have committed illegality by relying upon the testimony of PW-1 Kishore Kumar and PW-2 Lakshmi Narayan to the effect that they have come to know that the petitioner is not the owner. The examination of the accused under Section 313 Cr.P.C is not merely a formality. All the incriminating evidence is to be put to him. It is no where put to the petitioner that he is not the owner of the house and in spite of that, he has mortgaged the house in question in favour of the complainant. Mere mortgaging the house is not a criminal offence. So, both the Courts below have committed serious illegality by holding that the petitioner is not the owner of the house and in spite of that, he has agreed to secure the loan of Rs.28,000/-. 14. Mere mortgaging the house is not a criminal offence. So, both the Courts below have committed serious illegality by holding that the petitioner is not the owner of the house and in spite of that, he has agreed to secure the loan of Rs.28,000/-. 14. In authority in case Kanhai Mishra @ Kanhaiya Misar Versus State of Bihar, 2001(2) R.C.R (Criminal) 110 equivalent to 2001 A.I.R (SC) 1113, it has been held that a circumstance not put to the accused during his examination under Section 313 Cr.P.C cannot be used against the accused. 15. In authority in case Nageshwar Prasad Singh alias Sinha (supra), it has been held that where there is civil liability, in that case, criminal intention cannot be said to be proved. 16. One another circumstance which militates against the case of the prosecution is that writing, Exhibit PA/1, relied upon by the prosecution vide which an amount of Rs.28,000/-was taken by the accused is signed by Avtar Singh, brother of the petitioner. So, brother of the petitioner has himself admitted that the petitioner is the owner of the house and on the basis of hear-say evidence, both the Courts below have held that the petitioner/accused is not the owner of the house in question. The fact remains that it is a criminal case and every fact has to be proved by the prosecution beyond any reasonable doubt. In these circumstances, the judgments of both the Courts below stand set side and the accused stands acquitted by giving him benefit of doubt. This Criminal Revision stands allowed, in the manner indicated above. Revision allowed.