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2009 DIGILAW 517 (PNJ)

Devi Ram v. Maha Ram

2009-03-18

KANWALJIT SINGH AHLUWALIA

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JUDGMENT KANWALJIT SINGH AHLUWALIA, J 1. Maha Ram accused had executed a sale deed on 10th July, 1990 in favour of petitioners regarding plot No. 7 falling in Khasra No. 906 and 907. The sale deed was for plot measuring 140 square yards. Later it dawned upon the petitioners complainant that actual area was 120 square yards. 2. They had filed a civil suit, in which prayer was made that deficient area be made good by Maha Ram, seller of the land. Counsel for the petitioners is unable to state the date as to when the civil suit was filed. Counsel has, however, submitted that the Local Commissioner visited the spot and physical measurement of the plot was done on 24th July, 2006. It is stated that accused Maha Ram had also filed a civil suit on 4th October, 2002. Maha Ram had filed a criminal complaint in the Court that mutation No.2985 sanctioned on 4th August, 1990 was a forged entry as it was mentioned in the entry that Maha Ram had undertaken to make the deficiency of land good. In the complaint so filed by Maha Ram, petitioners have been summoned as accused. 3. The complaint was filed by the petitioners against Maha Ram on 4th November, 2003 after a delay of 13 years. In the complaint so filed, respondent Maha Ram was summoned as accused. The Court of Judicial Magistrate (1st Class), Gurgaon, vide order dated 17th September, 2004 had summoned Maha Ram to stand trial for offence under Section 420 and 506 IPC on the ground that the area was less than the area specified in the sale deed dated 10th July, 1990. 4. Aggrieved against the summoning order, Maha Ram had filed a revision petition. The revision petition has been decided by the Court of Additional Sessions Judge, Gurgaon, who has held that once the party had approached the Civil Court and there is deficiency in the area in actual possession of the petitioners than the one specified in the sale deed, no criminal offence is made out. 5. The order of Additional Sessions Judge, Gurgaon, whereby summoning order passed against Maha Ram has been set aside, has been assailed before this Court in the present petition under Section 482 Cr.P.C. 6. Mr. 5. The order of Additional Sessions Judge, Gurgaon, whereby summoning order passed against Maha Ram has been set aside, has been assailed before this Court in the present petition under Section 482 Cr.P.C. 6. Mr. Rajesh Arora appearing for the petitioners has stated that the Court of Additional Sessions Judge had committed a grave error as from the physical measurement done at the site and as per the report of the Local Commissioner, actual area in possession of the petitioners was less than the area specified in the sale deed. It has further been submitted that this will constitute an offence of Section 420 IPC. Counsel has further submitted that since a complaint has also been filed by Maha Ram against the petitioners for forging the mutation entry, therefore, minimum required was that both the complaints should have been tried together to put the parties at par. 7. In a Criminal Court, balance of convenience is alien. Simply because one set of accused is facing trial, for another it is not necessary to face trial unless any offence is spelt out. Sale deed was executed on th July, 1990. Civil suit was filed in year 2002. Present complaint was filed in year 2004. Civil Court is seized of the matter. Prayer made before the Civil Court is that deficient area be made good by the accused Maha Ram. There is no infirmity or patent illegality in the order passed by the Additional Sessions Judge, whereby summoning order has been set aside. This Court, while exercising powers under Section 482 Cr.P.C., has to use the powers sparingly with restraint only when a patent illegality is required to be cured. No interference is warranted. Hence the present petition is dismissed. Petition dismissed.