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2010 DIGILAW 1346 (PNJ)

Kashmir Singh v. State of Haryana

2010-04-01

S.S.SARON

body2010
JUDGMENT S.S. Saron, J.:- Heard learned counsel for the respective parties and Mr. Naresh K. Joshi, Advocate (Amicus Curiae). 2. The petitioner Kashmir Singh seeks regular bail in a case registered against him on 12.12.2009 for the offences under Sections 406, 420, 467, 468, 471/120-B IPC. 3. The facts of the case are that Joginder Singh was facing trial for uxoricide of Smt. Laxmi Devi. His four minor daughters, namely, Usha Devi, Karamjeet Devi, Rajni Devi and Kajal through their maternal uncle Balwant Singh filed a suit for maintenance against Joginder Singh. The learned Civil Judge, Pehowa vide order dated 8.2.2005 directed aforesaid Joginder Singh who was defendant in the suit to pay interim maintenance of Rs.3,000/- per month out of the income of the property. In terms of a separate order of the same date, Joginder Singh defendant was allowed to alienate the suit property subject to the condition that the maintenance of his daughters would be a first charge on the suit property i.e. agricultural land measuring 40 Kanals. Joginder Singh, however, vide sale deed dated 1.9.2006 sold the suit land measuring 40 Kanals to the petitioner Kashmir Singh and his co-accused Manjit Singh for a sale consideration of Rs.20 Lacs without making a recital in the ale deed regarding creation of charge. The possession of the land was also delivered. After one day of the execution of the sale deed i.e. on 2.9.2006, Joginder Singh-the seller and Manjit Singh-the purchaser entered into an agreement in which it is recorded that Manjit Singh had purchased the land which was owned by Joginder Singh. It is further mentioned that a case between them with respect to the land was pending before the Court at Pehowa. Manjit Singh had kept with him an amount of Rs.15 Lacs of the seller-Joginder Singh as trust money. The purchaser Manjit Singh agreed that till the case of Joginder Singh is not decided the aforesaid amount of Rs.15 Lacs would be retained in trust. Out of the said amount the expenses meaning thereby the expenditure incurred on the case would be deducted out of the said amount of Rs.15 Lacs and Manjit Singh would be bound and responsible to return the remaining amount to the second party after the decision of the case. An interest would be charged on the balance amount. Out of the said amount the expenses meaning thereby the expenditure incurred on the case would be deducted out of the said amount of Rs.15 Lacs and Manjit Singh would be bound and responsible to return the remaining amount to the second party after the decision of the case. An interest would be charged on the balance amount. It may be noticed that the time of registration of the sale deed on 1.9.2006 Manjit Singh-the purchaser furnished an affidavit before the registration authority which is to the effect that the civil suit filed by Usha Devi and three other daughters of Joginder Singh seller regarding sale of the land had been settled and no case/appeal had been filed and if in case an appeal is filed he (Manjit Singh) shall be responsible for the same. Thereafter, the petitioner and his co-accused Manjit Singh sold the land to Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu for an amount of Rs.20,50,000/- vide sale deed dated 30.3.2007. An amount of Rs.15 Lacs was, however, retained by the aforementioned vendees, namely, Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu in lieu of the charge of maintenance of the minor daughters of Joginder Singh. The surreptitious manner in which the property of the minor daughters of Joginder Singh, namely, Usha Devi and others was being misappropriated was noticed by this Court during the hearing of Civil Revision No.4919 of 2009 which was filed by Smt. Vijay Kumari and others, the subsequent vendees from Manjit Singh and Kashmir Singh (petitioner) against Usha Devi and three other daughters of Joginder Singh. The revision petition was against the order dated 17.4.2009 passed by the learned Civil Judge (Junior Division), Pehowa whereby an application under Order 1 Rule 10 of the Code of Civil Procedure filed by Vijay Kumari and others-subsequent vendees for their impleadment in the civil suit filed by the daughters of Joginder Singh for the grant of maintenance against their father Joginder Singh had been dismissed. This Court vide order dated 31.8.2009 passed in Civil Revision No.4919 of 2009 was of the view that not even a penny had been paid to the poor girls i.e. the daughters of Joginder Singh. Besides, Joginder Singh had sold the land to one Manjit Singh on 1.9.2006 from whom the petitioners therein i.e. Vijay Kumari and others had purchased the land vide sale deed dated 30.3.2007. Besides, Joginder Singh had sold the land to one Manjit Singh on 1.9.2006 from whom the petitioners therein i.e. Vijay Kumari and others had purchased the land vide sale deed dated 30.3.2007. The petitioners Vijay Kumari and others were directed to file an affidavit explaining (i) the source of their income; (ii) income tax returns, and (iii) the mode of the payment of the sale consideration to Manjit Singh. Since the rights and very survival of the poor minor sisters was involved and the suit land was likely to exchange more hands to strengthen the conspirated plea of ‘bona fide purchasers’, the petitioners in the Civil Revision i.e. Vijay Kumari and others were restrained from alienating or creating any kind of encumbrances of the suit land. The Deputy Commissioner, Kurukshetra and Naib Tehsildar, Ismailabad were directed to make necessary entries in the revenue record if not already made and not to entertain any transaction whatsoever in respect of the suit land till further orders. A restraint was also put on Joginder Singh from selling /transferring and/or creating any encumbrances on the suit land. The Deputy Commissioner, Kurukshetra and Naib Tehsildar, Ismailabad were asked to file their affidavits in compliance. The Naib Tehsildar, Ismailabad was asked to remain present in Court to explain why penal action be not taken for his prima facie collusion with Joginder Singh and the subsequent vendees when the sale deeds were registered without recital regarding charge for maintenance. Manjit Singh was impleaded as respondent No.6 to the said petition. Thereafter, vide order dated 8.9.2009 compliance of the earlier order dated 31.8.2009 regarding entries in the revenue record were submitted in this Court. Mr. Lehna Singh, Naib Tehsildar, Ismailabad and Mr. Rakesh Garg, the then Naib Tehsildar, Ismailabad were present in Court. The sale deed dated 1.9.2006 executed by Joginder Singh in favour of Manjit Singh and the Kashmir Singh (petitioner) and also the sale deed dated 30.3.2007 executed by Manjit Singh and Kashmir Singh (petitioner) in favour of Vijay Kumari and others were placed on record. This Court was of the view that the then Naib Tehsildar, Ismailabad appeared to be hands in glove and had concealed the order of the Civil Court creating charge over the land and made no entry in the revenue record. This Court was of the view that the then Naib Tehsildar, Ismailabad appeared to be hands in glove and had concealed the order of the Civil Court creating charge over the land and made no entry in the revenue record. Before issuing further directions, this Court deemed it appropriate to enable the State Government to get the element of mens rea examined from the Deputy Commissioner, Kurukshetra. The Deputy Commissioner vide his report dated 24.9.2009 held that there was conspiracy, collusion and cheating between the vendor, vendees, Naib Tehsildar and other officials. It was concluded by the Deputy Commissioner that the two conspirators, namely, the Naib Tehsildar and the Registry Clerk being Government servants, the State Government was competent to take action against them under Rule 7 of the Haryana Civil Service (Punishment and Appeal) Rules, 1987. The copy of the inquiry report was also endorsed to the Superintendent of Police, Kurukshetra with a request to lodge a FIR and take immediate action against the officers, persons found guilty as mentioned in the inquiry report. This Court vide order dated 20.11.2009 modified the order dated 25.9.2009 to the extent that the Superintendent of Police, Kurukshetra was directed to act upon the report dated 24.9.2009 of the Deputy Commissioner and register an appropriate case against the suspects (except the three lady petitioners) and appoint a senior police officer as investigating officer who would take immediate action against all the suspects. In consequence of the said directions FIR No.142 dated 12.12.2009 for the offences under Sections 406, 420, 467, 468, 471 and 120-B IPC has been registered at Police Station Ismailabad, District Kurukshetra. 4. The petitioner-Kashmir Singh seeks bail in the said FIR. It may be noticed that in the inquiry report dated 24.9.2009 of the Deputy Commissioner, Kurukshetra the role of Manjit Singh and Kashmir Singh (petitioner) was considered. They are the initial purchasers of the land from Joginder Singh. In their joint statement recorded in the enquiry, they admitted that they purchased 40 Kanals land from Joginder Singh for a consideration of Rs.38 Lacs. Manjit Singh kept an amount of Rs.15 Lacs as security in lieu of the dispute of the land so that the said amount may be adjusted against the maintenance of the girls, that is, the daughters of Joginder Singh. Manjit Singh kept an amount of Rs.15 Lacs as security in lieu of the dispute of the land so that the said amount may be adjusted against the maintenance of the girls, that is, the daughters of Joginder Singh. With regard to source of income it was stated that they had arranged the amount from their relatives and friends but had no proof of the loan and bank receipts. It was also admitted by Manjit Singh that most of the action in the said transaction was taken by him and Kashmir Singh (petitioner) was a silent purchaser. It is also submitted that they had knowledge of the Court order while purchasing the land but they had paid Rs.10 Lacs as advance to Joginder Singh, therefore, they were bound to get the sale registered in their favour. The Deputy Commissioner, Kurukshetra in his report dated 24.9.2009 found Manjit Singh to be prima facie guilty of cheating in collusion with Joginder Singh and the Naib Tehsildar to defeat the legal rights of maintenance of the girls and that he had disobeyed the order of the Court. However, it was noticed that Kashmir Singh (petitioner) did not play a major role in the transaction but this ground, it was observed, was not sufficient to set him free from the conspiracy played by him in collusion with the above persons. They had also paid less stamp duty to the State exchequer for which they were liable. Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu, it was held, had purchased the land through cheques. 5. The petitioner Kashmir Singh, therefore, it was observed to be a non-active purchaser of the land. It is submitted that Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu have deposited a sum of Rs.10 Lacs in the names of daughters of Joginder Singh. Besides, it is submitted that the petitioner and his co-accused Manjit Singh had passed on the amount of Rs.15 Lacs for the maintenance of the daughters of Joginder Singh to the subsequent purchasers Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu. Besides, it is submitted that the petitioner and his co-accused Manjit Singh had passed on the amount of Rs.15 Lacs for the maintenance of the daughters of Joginder Singh to the subsequent purchasers Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu. Besides, it is Manjit Singh co-accused of the petitioner who had furnished affidavit dated 1.9.2006 at the time of registration of the sale in which it is stated that Usha Devi and others daughters of Joginder Singh had obtained a stay from the Court of learned Additional Civil Judge (Senior Judge), Pehowa with regard to the land in question which, it is stated, had been settled. It is stated in the affidavit filed by Manjit Singh that the Court had decided the case and against the said order Usha Devi and others had not filed any case and if any case/appeal is filed qua the aforesaid land then he (Manjit Singh) would be responsible for the same. Therefore, the petitioner Kashmir Singh did not execute any affidavit. The petitioner is in custody since 2.1.2010. The trial in the case is likely to take time. The prosecution is to establish its case. Therefore, it would be just and expedient that the petitioner is admitted to bail. 6. Accordingly, the criminal miscellaneous petition is allowed and the petitioner on his furnishing personal bond and surety to the satisfaction of the learned trial Court shall be admitted to bail. --------------