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2012 DIGILAW 1097 (PNJ)

Malkiat Singh Gill v. State of Punjab

2012-08-22

MEHINDER SINGH SULLAR

body2012
JUDGMENT Mr. Mehinder Singh Sullar, J. (Oral) - The crux of the facts & material, which needs a necessary mention, for the limited purpose of deciding the instant petition for anticipatory bail and emanating from the record, is that complainant Baljit Singh Gill son of Gurcharan Singh respondent No.2 (for brevity “the complainant”) and petitioner Malkiat Singh Gill are real brothers. The complainant executed a registered General Power of Attorney (for short “the GPA”) in the year 2000 in favour of petitioner for the purpose of managing the property. According to the complainant that in the month of November, 2010, petitioner proposed to sell the land in question, as the vendee was ready to give handsome consideration amount. The complainant agreed to his proposal, asked the petitioner to sell his share as well and deposit the consideration amount of his share in his account in the bank. In the meantime, their mother had also died. Consequently, the petitioner sold the land in question, vide registered sale deed dated 1.12.2010 (Annexure P4). It was claimed that the complainant asked the petitioner as to whether he has deposited his share of sale consideration in his account in the bank, but the petitioner and his son Nirmaljit Singh Gill kept putting him off on one pretext or the other. They did not deposit the amount of his (complainant) share in the bank, despite repeated requests. 2. Leveling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that petitioner did not deposit his share of sale consideration in his account in the bank and thus he misappropriated the indicated amount and cheated him. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioner and his son & co-accused Nirmaljit Singh Gill, by way of FIR No.1 dated 25.1.2012, on accusation of having committed the offences punishable under sections 406 and 420 read with section 34 IPC by the police of Police Station Punjab State Crime, SAS Nagar (Mohali), in the manner depicted here-in-above. 3. Having exercised and lost his right of bail before the Additional Sessions Judge, now the petitioner has preferred the instant petition for the grant of anticipatory bail in the present case, invoking the provisions of section 438 Cr.PC. 4. Notice of the petition was given to the respondents. 5. 3. Having exercised and lost his right of bail before the Additional Sessions Judge, now the petitioner has preferred the instant petition for the grant of anticipatory bail in the present case, invoking the provisions of section 438 Cr.PC. 4. Notice of the petition was given to the respondents. 5. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, the instant petition for anticipatory bail deserves to be accepted in this context. 6. Ex facie the argument of learned counsel for the complainant that since the petitioner has misappropriated the amount in question and cheated him (complainant), so, he is not entitled to the benefit of anticipatory bail, lacks merit. On the contrary, the contention of learned counsel for petitioner that in any case, as the dispute is purely of a civil nature, therefore, the petitioner is entitled to the concession of anticipatory bail, has considerable force. 7. As is evident from the record that, during the course of preliminary hearing, a Coordinate Bench of this Court (Rajan Gupta, J.) passed the following order on 14.5.2012:- “Learned State counsel (on instructions from Inspector Makhan Singh, who is present in court) submits that allegation against the petitioner is that he pocketed the money received as a result of sale of land in question on the basis of GPA executed by the complainant. He further submits that in view of the queries raised by this court on March 01,2012, authenticity of the document (GPA) was verified from Lucknow and it was found to be validly executed. On a query being put to him whether General Power of Attorney executed outside State of Punjab are being relied upon for the purpose of sale at present, he submits that he needs some time to seek instructions from the revenue authorities as well and thereafter address the court. He contends that if necessary, an affidavit shall also be filed regarding aforesaid. In the interest of justice, adjourned to 31.5.2012. As learned State counsel wants to seek instructions from revenue authorities, it is appropriate that an affidavit of a senior officer is filed. Let affidavit of Senior Superintendent of Police, SAS Nagar be filed on or before the next date of hearing. Interim order to continue. In the interest of justice, adjourned to 31.5.2012. As learned State counsel wants to seek instructions from revenue authorities, it is appropriate that an affidavit of a senior officer is filed. Let affidavit of Senior Superintendent of Police, SAS Nagar be filed on or before the next date of hearing. Interim order to continue. Copy of this order be handed over to the learned State counsel under signatures of Court Secretary.” 8. In pursuance thereof, Gurpreet Singh Bhullar, Senior Superintendent of Police filed his affidavit to the effect that the GPA in question executed by Baljit Singh complainant in favour of his brother Malkiat Singh Gill (petitioner) was got registered in the office of Sub-Registrar, Lucknow and based upon the same, sale deed was executed in Mohali, vide registered sale deed dated 1.12.2010. The GPA remains valid till the time, its executant is alive or it has not been revoked or cancelled. He has specifically concluded that the GPA in question was valid at the time of registration of the impugned sale deed. 9. Meaning thereby, the petitioner had the power as GPA (authority) and he has validly executed the sale deed (Annexure P4), in this relevant connection. As to whether the petitioner did not deposit the entire share of the complainant or he (complainant) was also entitled to half share of sale consideration of their (deceased) mother, would be the moot points to be decided during the course of trial by the trial Court. Moreover, the subject matter of disputes contained in the FIR is purely of a civil nature. If the complainant is, in any manner, aggrieved in this regard, then, he may institute a civil suit for recovery or make any prayer as the case may be. 10. Be that as it may, all the documents are already with the police and since the petitioner has already joined the investigation, so, to me, he is entitled to the benefit of anticipatory bail as well in the obtaining circumstances of the case, particularly when it is also not a matter of dispute that Nirmaljit Singh Gill, son of the petitioner has already been allowed the concession of anticipatory bail by the Additional Sessions Judge, by virtue of order dated 15.2.2012 (Annexure P1). 11. 11. In the light of aforesaid reasons, taking into consideration the totality of facts & circumstances, emanating from the record, as discussed here-in-before and without commenting further anything on merits lest it may prejudice the case of either side during the course of trial of main case, the instant petition for anticipatory bail is hereby accepted. It is directed that in the event of arrest of the petitioner, he shall be released on anticipatory bail on his furnishing bail and surety bonds in the sum of Rs.25,000/- to the satisfaction of Arresting Officer, subject to the conditions that (i) he shall make himself available for interrogation by the Investigating Agency as and when required; (ii) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer and (iii) he will not leave India without prior permission of the trial Court. 12. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant direction. It is also made clear that if the petitioner does not cooperate or join the investigation, then the prosecution/complainant would be at liberty to move a petition for cancellation of his anticipatory bail, in this relevant connection.