Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 173 (HP)

Balak Ram Negi v. State of H. P.

2013-03-08

V.K.SHARMA

body2013
JUDGMENT V.K. Sharma, J. As all the above titled three appeals arise out of a single judgment/order dated 24.9.2001/12.10.2001, rendered by the learned Special Judge (Forest), Shimla, Himachal Pradesh in Corruption Case No. 18-S/7 of 93/89, titled State of Himachal Pradesh Versus Smt. Shakuntla Kochhar and others, these are being disposed of by this common judgment. 2. As many as ten accused, namely, M.L. Kochhar, B.L. Kochhar, Adarsh Mohan, Smt. Shakuntla Kochhar (A-1); Bhau Singh (A-2); Kahana Singh (A-3); Balak Ram Negi (A-4); J.K. Sharma, Prith Pal Singh and Gian Chand Sharma (A-5), were charge sheeted for commission of offences under Sections 465, 467, 468, 471, 420, 218, 167, 447 and 120-B of the Indian Penal Code (in short ‘IPC’), Section 81 of the Indian Registration Act (for short ‘Registration Act’) and Section 5 (2) of the Prevention of Corruption Act, 1947 (‘PC Act’). However, consequent upon death of accused M.L. Kochhar, B.L. Kochhar, Adarsh Mohan and Prith Pal Singh during pendency of the trial, the case against them stood abated. The proceedings against accused J.K. Sharma stood quashed, pursuant to the judgment dated 21 .6.1994, passed by this court in Cr. M.P(M) No. 925 of 1992. Hence, his name was deleted from the array of the accused. 3. For the sake of convenience the accused before the learned Trial Court, including the appellants (convicts), shall hereinafter be referred to as such and denoted as A-1, A-2 so on and so forth, respectively. 4.A-1, Smt. Shakuntla Kochhar, who is stated to have since died, was convicted for the offences under Sections 120-B, 468, 471 and 420 IPC and was released on probation under Section 4 of the Probation of Offenders Act, 1958 and ordered to pay compensation of ! 15,000/- (rupees fifteen thousand only), to the State under Section 5 of the said Act. It appears that she did not lay challenge against the impugned judgment of conviction/order of sentence dated 24.09.2001/1 2.10.2001. 5.A-2 to A-4, namely, Bhau Singh Chauhan, Kahana Singh and Balak Ram Negi, were convicted under Sections 120-B, 218, 468, 471 and 420 IPC and Section 5(2) of the PC Act and sentenced as under:- “(i) rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further simple imprisonment for a period of 3 months under Section 120-B of the Indian Penal Code. 1000/- and in default of payment of fine to undergo further simple imprisonment for a period of 3 months under Section 120-B of the Indian Penal Code. (ii) imprisonment for one year under Section 218 of the Indian Penal Code; (iii) rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months offence under Section 420 of the Indian Penal Code; (iv) rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further simple imprisonment for a period of six months offence under Section 468 of the Indian Penal Code; (v) rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment for a period of 6 months offence under Section 471 IPC; and (vi) rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment for a period of 6 months offence under Section 5 (2) of the Prevention of Corruption Act, 1947" 6.However, A-5, Gian Chand Sharma was acquitted. 7.Criminal Appeals No. 595 of 2001, 597 of 2001 and 613 of 2001 have been preferred by A-4, Balak Ram Negi, A-3, Kahana Singh and A-2, Bhau Singh Chauhan, respectively. 8.The factual matrix as emerges out of the record and as noticed by the learned Special Judge (Forest), is as follows: 9. PW-25 Shri Kundan Lal Ahuja made a complaint, Ext. PW1/A, dated 19.7.1985, to the Superintendent of Police, on the basis of which First Information Report, Ext. PW1/C, came to be registered in Police, Station South Zone Shimla and investigation ensued. It was found during investigation that the property known as Central Hotel Estate Shimla was owned by one Khan Bahadur Mehdi Ali which became evacuee property in the year 1947 on his migration to Pakistan. This Estate consisted of the Central Hotel Main Building, an Annexe, Additional houses (cliff Cottage) Stables and Servant quarters, three storeyed block and maid stone lodge. The total area of this estate was 9190.7 Sq. Yards according to Jamabandi for the year 1950-51. This Estate consisted of the Central Hotel Main Building, an Annexe, Additional houses (cliff Cottage) Stables and Servant quarters, three storeyed block and maid stone lodge. The total area of this estate was 9190.7 Sq. Yards according to Jamabandi for the year 1950-51. This property, on passing of the Displaced Persons (Compensation and Rehabilitation) Act 1954, became a part of compensation Pool. In the year 1948 it was leased out to Shri M.L. Kochhar, husband of A-1 Smt. Shakuntla Kochhar on a monthly rent of ! 540/- by the Custodian Department. 10. It was revealed during investigation that in the year 1954 Shri Parmatma Saran valuer of the valuation department under the ministry of Relief and Rehabilitation carried out valuation of Central Hotel Estate Shimla and according to his valuation reports prepared in the month of July, 1954 the property was divided into 26 plots and the estimated value was ! 3,80,519.00 and the total area of these plots was 7789 Sq. yards. But Shri Adarsh Mohan Valuer brought down the reserve price to ! 1,25,000/- by making certain changes/amendments on the calculations made by Shri Parmatma Saran Valuer. This property on the basis of these valuation reports was auctioned on 25.8.1955 and the highest bid of Shri Attar Singh was ! 76,000/- which being much below the reserve price was rejected. The above stated property of Central Hotel Estate was thereafter shown to have been divided into four lots by Shri Adarsh Mohan valuer accused for the purpose of valuation and auction which are as under:- “1) Central Hotel (Main building) area 1556 Sq. years and reserve price was ! 55000/-, ii) Central Hotel (Additional Houses Just over Stables) area 641 Sq. Yards and reserve price was ! 12,000/-, iii) Central Hotel (stable & servant quarters, area 660 Sq. yards and reserve price was ! 11,000/-, iv) Central Hotel (Annexe) area 260 Sq. Yards and reserve price was ! 16,000/- and the total area was 3117 Sq. yards.” 11.During investigation it was found that according to the approved Municipal Corporation site plan of this Estate, the building mentioned as stables and servant quarters and Annexe by Shri Adarsh Mohan in his valuation reports are known as “Cliff Cottage an maid-stone lodge” and Adarsh Mohan valuer in connivance with Shri M.L. Kochhar to cause loss to the Govt. yards.” 11.During investigation it was found that according to the approved Municipal Corporation site plan of this Estate, the building mentioned as stables and servant quarters and Annexe by Shri Adarsh Mohan in his valuation reports are known as “Cliff Cottage an maid-stone lodge” and Adarsh Mohan valuer in connivance with Shri M.L. Kochhar to cause loss to the Govt. and undue gain to him showed less area and less buildings of the Central Hotel Estate by dividing the same into four lots and thus valued the entire Estate for ! 94,000/- and thereby abused his official position as a public servant and cheated the Govt. by preparing false documents. 12. It was further alleged that on 18.11.1955, lot No. (1) Central Hotel (Main building) was purchased by Shri Kala Ram Khanna in a public auction for ! 67,225/- through his authorized bidders S/Shri M.L. Kochhar and V.P. Puri in whose names Kala Ram Khanna had given special Power of Attorney. The sale certificate relating to his property was issued on 29.3.1963 by the Managing Officer, Ambala depicting the boundaries of the property sold to Kala Ram Khanna as (1) East Hillock, (2) West=stables and additional House (3) North= M.C. road and (4) South= M.C. Road and Kala Ram Khanna was benamidar of Smt. Shakuntla Kochhar. The property stated above was sold by public auction by one Shri Joginder Singh, Assistant Settlement Commissioner, on 18.11.1955 on the basis of the valuation reports prepared by Shri Adarsh Mohan Valuer in the presence of Shri Adarsh Mohan, Parma Nand Kalra, H.D. Sardana, Attar Singh, V.P. Puri, M.L. Kochhar and other bidders. The property known as Central Hotel (Stables and Servant Quarters) was also formally put to auction but it was subsequently, through another sale finally sold to Shri Dina Nath on 10.6.1959 for Rs. 7,000/-. A certificate of sale was issued in his favour and Shri Dina Nath later on sold the aforesaid property to Shri Kundan Lal Ahuja. 13. It was further found during investigation that the property known as Additional Houses just over the stables and servant quarters was sold in favour of Shri J.K. Bakshi for ! 21,750/- on 18.11.1955, which is shown as Cliff cottage in approved site plans of Municipal Corporation Shimla. The property known as Annexe was sold to Shri Sukh Nidhan Singh for Rs. 21,750/- on 18.11.1955, which is shown as Cliff cottage in approved site plans of Municipal Corporation Shimla. The property known as Annexe was sold to Shri Sukh Nidhan Singh for Rs. 17,025/-on 18.11.1955, but as the purchaser could not pay the auction money, the sale was not confirmed in his favour and as such this property remained unsold and was never re-auctioned. As a matter of fact, Annexe and three storeyed block adjacent to the main building were neither evaluated nor these were put to auction and instead of Annexe another double storeyed building known as maid stone lodge was valued by giving it the name of Annexe in the valuation reports and put to auction on 18.11.1955. It was further found during investigation that in 1963 Shri Kala Ram Khana relinquished his rights as benamidar in respect of the property purchased by him in favour of Smt. Shakuntla Kochhar vide disclaimer (relinquishment) deed No. 52 dated 8.11.1953. Shri Kala Ram Khanna had given power of attorney in favour of Shri M.L. Kochhar and his son Shri B.L. Kochhar authorizing them to act on his behalf to take possession of main Central Hotel building to dispose of, assign or otherwise deal with it. The power of Attorney in favour of Shri M.L. Kochhar is dated 14.8.1956. On 5.9.1967 A-2 Bhau Singh Chauhan, Patwari of Municipal Corporation, Shimla made a wrong entry in the Jamabandi of Station Ward Chhota Shimla for the year 1950-51, showing Smt. Shakuntla Kochhar to be owner of entire Central Hotel Estate comprising of Khata Number 113/222, measuring 9190.7 Sq. Yards on the basis of disclaimer deed No. 52 dated 8.11.1963, which was got registered by Shri B.L. Kochhar Special Power of Attorney of Shri Kala Ram Khanna. Whereas in the said disclaimer deed and sale certificate “Central Hotel Main” had been mentioned, but Bhau Singh accused made the said false entry in the Jamabandi to facilitate the sale of Govt. land by her and her attorney Shri B.L. Kochhar under the garb of ownership. Smt. Shakuntla Kochhar (A-1) sold 6253.2 Sq. yards (including 220 Sq. yards on which she had built a house) whereas she through Kala Ram had purchased only 1556 Sq. yards. land by her and her attorney Shri B.L. Kochhar under the garb of ownership. Smt. Shakuntla Kochhar (A-1) sold 6253.2 Sq. yards (including 220 Sq. yards on which she had built a house) whereas she through Kala Ram had purchased only 1556 Sq. yards. Even lot named as Annexe in the valuation report of Shri Adarsh Mohan is known as “Maid Stone Lodge” in the approved M.C. site plans which remained unsold, was disposed of and sold by her to M/s. Himprastha. The plot measuring 416.3 Sq. yards comprising of Khasra Number 62/8, which was outside the wrongly described boundaries mentioned in the Sale Certificate and belonged to Govt. was sold to Smt. Amri Devi by Smt. Shakuntla Kochhar (A-1) through her attorney Shri B.L. Kochhar. 14.Further during investigation it was found that Shri K.L. Ahuja filed a complaint before Shri S.R. Mahantan, Deputy Secretary, who was exercising powers of Chief Settlement Commissioner in Himachal Pradesh, who vide order dated 12.7.1971, held that there has been a well planned conspiracy to include the Central Hotel (Annexe) within the bounds of main building without payment of its price and to achieve that end the boundaries of the Central (Main Building) set out in the sale certificate issued by Shri Krishan Chandra, Managing Officer, Ambala dated 29.3.1963 were wrongly described, and ordered that the boundaries of the Central Hotel (Main Building) be amended as East: Hillock; West: Common Road passage, North: Municipal road; South: Common road passage and Khasra Number 62/2 (Annexe) with vacant land attached thereto. Against this order Smt. Shakuntla Kochhar (A-1), Kundan Lal Ahuja, M/s. Himprastha and legal heirs of Shri H.D. Sardana moved a petition under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Secretary of Govt. of Himachal Pradesh exercising the powers of the Central Govt. held that the order of Deputy Secretary exercising the powers of the Chief Settlement Commissioner was without jurisdiction. However, he proceeded to hear the case and passed the orders dated 16.6.1972, wherein he held that there was a glaring discrepancy between the description of the property comprising Lot No. 119 sold at the auction in 1955 and the sale certificate issued for the same in 1963 in favour of the auction purchaser inasmuch as the certificate includes a different lot viz. Lot No. 119(a) (Annexe) for which a separate bid was received and there is a possibility of collusion between the office which issued the certificate of sale and the auction purchaser and ordered the amendment of the boundaries. M/s. Himprastha, Gian Chand Sardana and others and Smt. Shakuntla Kochhar (A-1) challenged the orders dated 16.6.1972 passed by the Secretary to the Govt. of Himachal Pradesh in the High Court. The High Court also held that it was only the Central Hotel (Main Building), which was sold to Shri Kala Ram Khanna and there was an apparent discrepancy between the description of the property by name and its delineation by boundaries. It was further held that the sale certificate is void to the extent that it included within the boundaries set out therein the property comprising the Central Hotel Annexe. 15.It was further revealed during investigation that one Krishan Chandra had issued sale certificate number 10120 dated 29.3.1963 of the Central Hotel Main building in the capacity of District Rent Managing Officer Ambala, by showing wrong and false boundaries in connivance with S/Shri Kala Ram Khanna, M.L. Kochhar and Smt. Shakuntla Kochhar (A-1) and was a party to the conspiracy to grab Govt. land and cause loss to the Govt. Further during investigation it was found that there was no person by the name of Krishan Chandra, who held the post of District Rent and Managing Officer, Ambala, but was a Rent Controller, who was not authorized to issue sale certificate. 16.Further during investigation it was found that Smt. Shakuntla Kochhar (A-1) to get the mutation of illegally grabbed property entered in her name produced the said manipulated sale certificate Number 10120 dated 29.3.1963 and Endst No. 10121 dated 29.3.1963 twice on different dates before different officials. First mutation No. 897 dated 21.4.1980 comprised of Khasra Number 62/1, measuring 1963.4 Sq. yards of Central Hotel Main Building was entered, compared and attested in favour of Shri Kala Ram Khanna on the application of Smt. Shakuntala Kochhar (A-1) dated 11.6.1979. This application was given to Shri Balwant Rai the then Tehsildar M.C. Shimla. This mutation was entered on the basis of sale certificate Endst. No. 10121 dated 29.3.1963 registered at Sr. No.1 dated 5.4.1963 in the office of Sub-Registrar, Shimla and other documents. This application was given to Shri Balwant Rai the then Tehsildar M.C. Shimla. This mutation was entered on the basis of sale certificate Endst. No. 10121 dated 29.3.1963 registered at Sr. No.1 dated 5.4.1963 in the office of Sub-Registrar, Shimla and other documents. The other mutation No. 898 dated 21.4.1980 was entered and attested in favour of Smt. Shakuntla Kochhar (A-1) on the basis of disclaimer deed made in her favour by Shri Kala Ram Khanna. Further Shri M.L. Kochhar accused produced sale certificate Number 10120 dated 29.3.1963 to Kahana Singh Patwari accused, on the basis of which he entered mutation No. 998 dated 10.7.1981 in the name of Kala Ram Khanna and mutation Number 999 in the name of Smt. Shakuntla Kochhar on the basis of disclaimer deed No. 52 dated 4.11.1963. The said Patwari entered the aforesaid mutation in respect of land comprising of Khasra Numbers 490/62/2E, 62/10, 61/11 and 62/9 measuring 2159.7 Sq. yards, which were not auctioned and sold to Kala Ram Khanna by excluding Khasra No. 62/1 where Central Hotel Main Building was located, which had actually been sold in public auction. The mutation was compared by A-2 Bhau Singh Chauhan and attested by A-4 Balak Ram Negi, Tehsildar. Shri. M.L. Kochhar in connivance with the said revenue officials managed to get entered mutation Nos. 998 and 999 of the property, which was not sold in public auction to Kala Ram Khanna by using the same Sale Certificate fraudulently on the basis of which mutation Nos. 897 and 898 dated 21.4.1980 had already been entered and attested and also shown different area which was not sold. Besides this A-3 Kahana Singh, Patwari, A-2 Bhau Singh Chauhan, Kanungo and Balak Ram Negi, Tehsildar entered, compared and attested respectively mutations No. 1000, 1001, 1002 and 1003 dated 10.7.1981 about the sale of property mutated by them vide mutations No. 998 and 999 in favour of the purchasers knowing fully well that the sold property belonged to the Govt. and was not sold to Kala Ram Khanna. 17. Further it was found that the entire estate of Central Hotel was attached in recovery case No. 937 for non-payment of taxes, vide order No. DRA/77-4205 dated 31.8.1977 of Collector, Shimla and remained attached till the decision of C.M.P. No. 619 of 1982. and was not sold to Kala Ram Khanna. 17. Further it was found that the entire estate of Central Hotel was attached in recovery case No. 937 for non-payment of taxes, vide order No. DRA/77-4205 dated 31.8.1977 of Collector, Shimla and remained attached till the decision of C.M.P. No. 619 of 1982. Those orders of attachment were vacated on decision of C.M.P. on 12.4.1982 vide letter No. SML-DRA-R(196)/81-3654 dated 14.4.1982, but A-3 Kahana Singh Patwari, A-2 Bhau Singh Chauhan, Kanungo and A-4 Balak Ram Negi, Tehsildar entered and attested mutations No. 1000 to 1003 dated 10.7.1981, which legally they could not have done as per the provisions of Section 83(4) of H.P. Land Revenue Act and from the above records and facts it was found that A-4 Balak Ram Negi, Tehsildar, A-2 Bhau Singh Chauhan, Kanungo and A-3 Kahana Singh, Patwari were also party to the criminal conspiracy with Sh. M.L. Kochhar, A-1 Smt. Shakuntla Kochhar and B.L. Kochhar to grab the Govt. property by playing fraud and prepared incorrect record by abusing their official position with a view to cause pecuniary advantage to M.L. Kochhar, B.L. Kochhar and A-1 Smt. Shakuntla Kochhar and to themselves and loss to the government. 18.During investigation it was further revealed that A-1 Smt. Shakuntla Kochhar, M.L. Kochhar and B.L. Kochhar in furtherance of conspiracy entered into an agreement for the sale of remaining property, i.e., an area of 2551 Sq. yards including three buildings known as Central Hotel Main Building, Annexe and three storeyed Blocks to Sh. Prithi Pal Singh of M/s. Rangar Hotel for ! 6,25,000/- vide an agreement of sale dated 20.11.1981 executed by A-1 Smt. Shakuntla Kochhar. Another agreement dated 13.4.1982 was executed by Sh. M.L. Kochhar, the lessee in favour of Smt. Gurmeet Kaur wife of Sh. Prithi Pal Singh transferring his lease hold rights in the Central Hotel Main Building Complex for ! 7500/-/. To finalise the sale of the above property a sale deed dated 23.4.1982 of an area of 2549.3 Sq. yards was executed by A-1 Smt. Shakuntla Kochhar in favour of Sh. Prithi Pal Singh of M/s Rangar Hotel Pvt. Ltd. for which non- judicial stamp papers amounting to ! 55,000/- were purchased from the treasury Shimla on 12.4.1982. This deed was presented before the Registrar (D.C.) Shimla, Shri Mohinder Lal alongwith an application dated 24.4.1982 signed by Sh. yards was executed by A-1 Smt. Shakuntla Kochhar in favour of Sh. Prithi Pal Singh of M/s Rangar Hotel Pvt. Ltd. for which non- judicial stamp papers amounting to ! 55,000/- were purchased from the treasury Shimla on 12.4.1982. This deed was presented before the Registrar (D.C.) Shimla, Shri Mohinder Lal alongwith an application dated 24.4.1982 signed by Sh. B.L. Kochhar, on 24.4.1982 for attestation, personally by Sh. B.L. Kochhar Attorney, of Smt. Shakuntla Kochhar and Sh. Prithi Pal Singh, Vendee. The Registrar having taken cognizance raised certain objections and also finding prima facie that sale of Government land was involved, issued orders to all the Sub-Registrars in Shimla not to entertain any sale deed in respect of Central Hotel Estate vide his order No. SML.Reg(B)/81-11011, dated 24.4.1982. When the document was presented before the Registrar (D.C.) Shimla by attorney, Sh. B.L. Kochhar and Prithi Pal Singh, Vendee, the objections raised by him were communicated to them verbally and in writing vide letter No. SML­Reg(8)/81-17046 dated 3.6.1982 to B.L. Kochhar. The said letter, as evident from peon book dated 7.6.1982 was duly served on B.L. Kochhar through Sh. M.L. Kochhar. After that the said sale deed was never presented before the Registrar for attestation. But M.L. Kochhar, Prithi Pal Singh and A-1 Smt. Shakuntla Kochhar managed to get the said deed registered on 15.12.1982 vide No. 763 in connivance with A-5 Gian Chand Shrma,Sub-Registrar in violation of the aforesaid orders of the Registrar. 19. It was further revealed during investigation that on the first page of the aforesaid sale deed the date of execution has been rubbed and retyped from 23.4.1982 to 10.12.1982, last page has been changed by replacing the same with another typed page, the contents of the sale deed itself speak that it was executed in the month of April, 1982 soon after the decision of CMP No. 545 of 1982 decided on 22.4.1982 by the High Court, the copy of sale deed pasted on the Register of the Sub Registrar has been typed separately and not simultaneously with the original sale deed. The changes in the document (sale deed) were made by Prith Pal Singh, Vendee, A-1 Smt. Shakuntla Kochhar, Vendor, and M.L. Kochhar in connivance with A-5 Gian Chand Sharma, Sub Registrar, Shimla to get the sale deed registered knowing fully well that the Registrar had refused to register the same and government land was involved in the sale. A-5 Gian Chand Sharma, Sub-Registrar, by-passed the orders of the Registrar to cause pecuniary advantage to the parties knowing that the sale deed was executed on 23.4.1982 and the date has been changed in the deed, entertained the sale deed and registered the same in violation of the provisions of Section 23 of the Registration Act and avoided payment of penalty which is ten times of the prescribed registration fee as per Section 25 of the Registration Act which comes to ! 56,347/-. A-5 Gian Chand Sharma in connivance with the purchaser and seller also ignored the provisions of Section 16(c) of the H.P. Town and Country Planning Act, 1977, Section 118 of the H.P. Land Reforms and Tenancy Act and knowing fully well that Govt. land involved, registered the sale deed on 15.12.1982. Accused Gian Chand Sharma, Sub Registrar without conducting enquiry into the complaint of Sh. K.L. Ahuja wherein it was alleged that the Govt. land was involved in the sale, registered the sale deed on 15.12.1982 only after recording the statement of Sh. Kundan Lal Ahuja. He further attested mutation No. 1178 dated 6.3.1984 in favour of Prithi Pal Singh on the basis of illegal sale deed No. 763 dated 15.12.1982. He also attested mutations No. 1027 dated 18.5.1983, 1028 dated 18.5.1983, 1183 and 1184 dated 15.11.1983 in favour of Rominder Singh, Kailash Nath, Smt. Sarla Devi and Vijay Kumar, respectively of the illegal sale of property of Central Hotel Estate. 20.It was further found during investigation that Sh. J.K. Sharma being custodian of this property instead of watching the interest of the Govt. issued a no objection letter No. 1036/TSU dated 26.11.1982 in respect of the land measuring 2549.3 Sq. yards of Central Hotel Estate. He vide letter No. 5-1/1972-Reh.519/82 dated 10.5.1982 [with reference to SDO (Civil), Una, Telegram No. 425-270/TSU dated 14.4.1982) and letter No. 5-1/77.Reh. dated 25.9.1982 from the Dy. Secretary (R&P)] was required to demarcate the land of Central Hotel Estate Shimla and to clarify queries raised in the said letters. yards of Central Hotel Estate. He vide letter No. 5-1/1972-Reh.519/82 dated 10.5.1982 [with reference to SDO (Civil), Una, Telegram No. 425-270/TSU dated 14.4.1982) and letter No. 5-1/77.Reh. dated 25.9.1982 from the Dy. Secretary (R&P)] was required to demarcate the land of Central Hotel Estate Shimla and to clarify queries raised in the said letters. He carried out the demarcation from 16.11.1982 to 18.11.1982 in a slipshod manner as is evident from the demarcation proceedings and even knowing fully well that A-1 Smt. Shakuntla Kochhar had already sold an area of 3480.7 Sq. Yards and had retained land measuring 220 Sq. yards for herself, gave the aforesaid no objection certificate thereby further allowed her to sell the property measuring 2549.3 Sq. yards to Prithi Pal Singh whereas she had purchased only 1556 Sq. yards from the custodian department through her benami Kala Ram Khanna. The said officer also failed to conduct proper enquiries into the complaints made to him by Sh. Kundan Lal Ahuja regarding illegal sale of Govt. property. Thus, according to the prosecution, from the investigation, record taken into possession, spot inspection, site plans, opinion of Govt. Examiner of Questioned Documents and statements of witnesses recorded under Section 161 Cr.P.C. it was, prima facie, found that M.L. Kochhar, his wife Smt. Shakuntla Kochhar (A-1) and their son B.L. Kochhar in connivance with the officials of Relief and Rehabilitation Department, with a view to grab Govt. property got prepared incorrect valuation reports in connivance with Adarsh Mohan, Valuer, Joginder Singh, Asstt. Settlement Commissioner, Sidhu Ram Sharma, Valuer and secured false sale certificates from one Sh. Krishan Chandra D.R.M.O. Ambala by depicting wrong boundaries of the sold property. It was further revealed during investigation that on the basis of disclaimer deed an illegal note was got effected in connivance with A-2 Bhau Singh Chauhan in the Jamabandi and the said entry was frequently used for the quick disposal of illegally grabbed Govt. property. A-3 Kahana Singh, Patwari, A- 2 Bhau Singh Chauhan, Kanungo and A-4 Balak Ram Negi, Tehsildar, illegally entered, compared and attested mutations in favour of Sh. Kala Ram Khanna, A-1 Smt. Shakuntla Kochhar and various other purchasers of illegally sold Govt. property. property. A-3 Kahana Singh, Patwari, A- 2 Bhau Singh Chauhan, Kanungo and A-4 Balak Ram Negi, Tehsildar, illegally entered, compared and attested mutations in favour of Sh. Kala Ram Khanna, A-1 Smt. Shakuntla Kochhar and various other purchasers of illegally sold Govt. property. Whereas A-5 Gian Chand Sharma and J.K. Sharma further facilitated the sale deed by giving incorrect report in connivance with M.L. Kochhar, B.L. Kochhar, A-1 Smt. Shakuntla Kochhar and Prithi Pal Singh by abusing their power as public servants with a view to derive pecuniary benefit and to cause loss to the Government. 21.On completion of investigation the accused were sent up to face trial. When charged they did not plead guilty and claimed to be tried. The prosecution evidence followed. It examined as many as 64 witnesses. 22.On close of the prosecution evidence the accused were examined by the learned Trial Court under Section 313 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’). While denying the incriminating circumstances appearing against them in the prosecution evidence, they have pleaded innocence and false implication. 23.Three witnesses have been examined in defence evidence. 24.After hearing the parties the learned Special Judge Proceeded to convict A-1 Smt. Shakuntla Kochhar, who was extended the benefit of the Probation of Offenders’ Act, convicted and sentenced A-2 Bhau Singh Chauhan, A-3 Kahana Singh and A-4 Balak Ram Negi and acquitted A-5 Gian Chand Sharma, as already noticed. 25. I have heard the learned Senior Counsel/Counsel for the appellants-accused, the learned Deputy Advocate General for the respondent-State and perused the records. It is submitted on behalf of the appellants (A-2 to A-4) that there is no legally admissible evidence against them and as such the impugned judgment of conviction/order of sentence dated 24.09.2001/12.10.2001, as far as the same relate to them, are not legally sustainable, entitling them for acquittal by acceptance of the appeals. However, per contra, the impugned judgment/order dated 24.09.2001/1 2.09.2001 are supported on behalf of the respondent-State. 26. The learned Special Judge had formulated the following points for determination: “POINT No. 1: Whether the prosecution has been able to prove beyond reasonable doubt that Adarsh Mohan accused (now deceased) in pursuance of criminal conspiracy with accused M.L. Kochhar (now deceased) and A-1, with intent to cheat and cause wrongful loss to the Custodian Department and Govt. 26. The learned Special Judge had formulated the following points for determination: “POINT No. 1: Whether the prosecution has been able to prove beyond reasonable doubt that Adarsh Mohan accused (now deceased) in pursuance of criminal conspiracy with accused M.L. Kochhar (now deceased) and A-1, with intent to cheat and cause wrongful loss to the Custodian Department and Govt. omitted to evaluate Evacuee Property comprised in Khewat Number 113, Khatoni Number 222, Khasra Numbers 62/1 to 62/11 and 490/62 measuring 9190.7 Sq.yards situated in Station Ward Chotta Shimla as described in Jamabandi for the years 1950- 51 Ext. PW5/G and under Valued 3123 Sq.yards out of the said Property? POINT No. 2: Whether Adarsh Mohan accused (now deceased prepared false and fictitious valuation reports Ext.PW11/B to Ext. PW11/E on the basis of which bid Ext. PW11/A was finalized and thereby facilitated the grabing of left out Evacuee Property by its auction purchasers on the basis of incorrect record prepared by him? POINT No. 3: Whether the boundaries of Evacuee property number 189/4 Central Hotel Main Building were wrongly described by including un-sold area in the sale certificate Ext.PW11/F? POINT No. 4: Whether A-2 by virtue of being a Patwari and entrusted with the charge of Revenue Record pertaining to Station Ward, Chhota Shimla effected wrong, false, fictitious and illegal entries Q-18 in the Parat Jamabandi Patwar Ext.PW12/A for the years 1950-51 to facilitate the illegal disposal of Evacuee property by A-1, by preparing such incorrect and false revenue record? POINT No. 5: Whether A-2 to A-4 wrongly entered, compared and attested mutation No. 998 dated 10.7.81 Ext.PW9/A and mutation No. 999 dated 10.7.81 Ext.PW9/B and thereby facilitated the execution of illegal sale deeds by A-1? POINT No. 5 A: Whether the prosecution has been able to prove that mutations Ext.PW9/C and Ext.PW9/F were entered, compared and attested by A-2 to A-4 respectively in contravention of Section 83(4) of the H.P. Land Revenue Act? POINT No. 6: In case points No. 1 to 5 are proved in affirmative of if either of the points stated above are proved in affirmative, whether A-2 to A-4 had committed the aforesaid illegal acts after entering into criminal conspiracy with their co-accused M.L.Kochhar (now deceased) B.L.Kochhar and A-1 and in pursuance of such criminal conspiracy, all or either of them cheated the Custodian Department or the Govt. and caused wrongful gain to themselves and corresponding loss to the said department of Govt.? POINT No. 7: In case any of the said points is proved in affirmative, whether A-2 to A-4 by virtue of being public servants at the time of committing aforesaid offences committed criminal misconduct and abused their position as public servants? POINT No. 8: Whether A-5 was a party to criminal conspiracy with A-1, Prithi Pal Singh (now deceased) M.L. Kochhar (now deceased) and B.L.Kochhar and in pursuance of such criminal conspiracy A-5 registered sale deed Ext.PW9/G in violation of the provisions contained in Sections 23 and 25 of the Indian Registration Act? POINT No. 9: If point No. 8 is proved in affirmative, whether A-5 by virtue of being public servant committed criminal misconduct and abused his position as public servant and thereby cheated the State of Himachal Pradesh and caused wrongful gain to him and to his co-accused and corresponding loss to the State? POINT No. 10: Final order.” 27.The points for determination, as above, were decided by the learned Special Judge as under: “POINT No. 1: No. POINT No. 2: No. POINT No. 3: Yes. POINT No. 4: Yes. POINT No. 5: Yes. POINT No. 5A: No. POINT No. 6: Yes. POINT No. 7: Yes. POINT No. 8: No. POINT No. 9: No. POINT No. 10: As per operative part of the judgment A-1 to A-4 are convicted whereas, A-5 is acquitted.” 28.As points No. 1, 2, 5A, 8 and 9 have been held by the learned Special Judge in negative and such findings having not been challenged by the respondent-State in appeal and further since A-1 Smt Shakuntla Kochhar, who was also convicted alongwith A-2 to A-4 and was let off on probation, did not lay any challenge against the impugned judgment/order dated 24.09.2001/12.10.2001, the scope of these appeals, in addition to point No. 3, which is of general nature, is confined to points No. 4, 5, 6 and 7 whereunder A-2 to A-4 have been indicted by the learned Special Judge. 29. First of all I shall take up for discussion and decision the findings returned by the learned Special Judge under point No. 3, which is as under: “POINT No. 3: Whether the boundaries of Evacuee property number 189/4 Central Hotel Main Building were wrongly described by including un-sold area in the sale certificate Ext.PW11/F?” 30. 29. First of all I shall take up for discussion and decision the findings returned by the learned Special Judge under point No. 3, which is as under: “POINT No. 3: Whether the boundaries of Evacuee property number 189/4 Central Hotel Main Building were wrongly described by including un-sold area in the sale certificate Ext.PW11/F?” 30. Certificate of sale dated 29th March, 1963, Ex. PW-1 1/F, in respect of property ‘Central Hotel Main Building Ev. No. 189/4 Simla’ (emphasis supplied) was issued in favour of Shri K.R. Khanna pursuant to a sale by public auction held on 18th November, 1955, whereby he was declared the purchaser of the said property w.e.f. 28th day of March, 1959. The property described in certificate, Ex. PW-1 1/F, by way of boundaries is as under: “BOUNDARIES EAST Hillock. WEST Stable additional houses. NORTH M.C. Road. SOUTH M.C. Road.” 31.Admittedly, Shri K.R. Khanna was ‘Benamidar’ of A-1 Smt. Shakuntla Kochhar, who transferred the aforesaid property in her favour by way of a disclaimer deed. 32.Later on, on receipt of information from the complainant, Shri Kundan Lal Ahuja, vide order dated 12.07.1971, Ex. PW-28/S, passed by Shri S.R. Mahantan, Chief Settlement Commissioner, Himachal Pradesh, Shimla, in case No. 50, State vs. Smt. Shakuntla Kochhar & others, operative part whereof, contained in para 9 is extracted below, boundaries of the aforesaid property known as ‘Central Hotel Main Building Ev. No. 189/4 Simla’were amended suo moto under Section 24 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (in short ‘the Act’) as per sub para 1) of para 9 of the order: “9. On inspecting the record of the sale of Central Hotel (Main Building) and the circumstances discussed above, I am fully satisfied that there has been a well planned conspiracy to include the Central Hotel (Annexe) within the bounds of main building without payment of its price and to achieve that end the boundaries of the Central Hotel (Main building) set out in the sale certificate issued by Shri Krishan Chandra, Managing Officer, Ambala dated 29th March, 1963 were wrongly described. I, therefore, find it a fit case for interference under Section 24 of Displaced Persons (Compensation & Rehabilitation) Act, 1954 and hereby order as under:- 1) The boundaries of the Central Hotel (Main Building) be amended as under:- East Hil-lockWest Common Road passage. North Municipal road. I, therefore, find it a fit case for interference under Section 24 of Displaced Persons (Compensation & Rehabilitation) Act, 1954 and hereby order as under:- 1) The boundaries of the Central Hotel (Main Building) be amended as under:- East Hil-lockWest Common Road passage. North Municipal road. South Common road passage and Khasra No. 62/2 (Annexe) with vacant land attached thereto. Emphasis supplied) 2) The amount of Rs. 8.900/- which Shri Kala Ram Khanna auction purchaser received from the Government on 24-11-1959 be got refunded and this will be a charge for the alleged damage caused by land slip occurred in September, 1956, when the auction purchaser had taken possession of the property on 28- 4-1956. After that it was no liability of the Government to make any loss good to the auction purchaser. The property had ceased to be evacuee property and the auction purchaser was in full enjoyment of the rights over the property. 3. The arrear of rent of the Hotel be recovered upto 23-4-1956. 4. Damages for use and occupation of the property of Central Hotel (Annexe) measuring 531 Sq. yds. Be charged @ Rs. 10/- per Sq. yd. per annum from 18th November, 1955. This rate is much below the floor area rent of Cecil Hotel which comes to Rs. 6/- to 7/- per Sq.ft. and around Rs. 60/- per Sq.yd. per annum. 5. Legal steps may be taken for his ejectment from the encroached premises and for sale of the property under the provision of law. 6. A copy of this order be sent to the Central Government for their information, if they so desire, to initiate criminal proceedings. 7. A copy of this order be sent to the Settlement Commissioner, Himachal Pradesh. He may examine the propriety of taking action regarding Cancellation of sale of the Central Hotel (Main building) under Rule 92 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1958.” 33.Being aggrieved , A-1 Smt. Shakuntla Kochhar, Shri Kundan Lal Ahuja, complainant, M/s Himprashta Financiers (P) Ltd. and Smt. Jai Devi Sardana and others (legal representatives of late Shri H.D. Sardana) challenged the aforesaid order dated 12th July, 1971, Ex. PW-28/S, passed by Shri S.R. Mahantan, Chief Settlement Commissioner, Himachal Pradesh, Shimla, by way of Revision Petition Nos. PW-28/S, passed by Shri S.R. Mahantan, Chief Settlement Commissioner, Himachal Pradesh, Shimla, by way of Revision Petition Nos. 1/71 to 4/71 before Shri K.C. Pandeya, I.A.S., Secretary to the Government of Himachal Pradesh, Shimla, exercising powers of Central Government under the Act, who vide order dated 16.06.1972, Ex. PW-28/L, set aside the aforesaid order dated 12th July, 1971, Ex. PW-28/S, of Shri S.R. Mahantan, Chief Settlement Commissioner, Himachal Pradesh, Shimla, and proceeded to pass the following order under Section 33 of the Act as per operative part of the order contained in para 14, which reads as under: “14. In the result I proceed to order under Section 33 of the Displaced persons (Compensation & Rehabilitation) Act, 1954 as under:- The boundaries of the sale certificate dated 29.3.63 issued by the Managing Officer be amended as follows:- (a) East Hillock (b) West Common Road passage. (c) North Municipal Road. (d) Common Road passage and field No. 62/2 (annexe) with vacant land attached to it. (b) The sum of Rs. 8,900/- wrongly sanctioned by the Chief Settlement Commissioner be recovered from the auction purchaser of Central Hotel (main building). The due rent upto 28.4.56 be also recovered from them. (c) The Central Hotel (annexe) was mis-used by the purchaser of the Central Hotel (main building) from the 18th November, 1955 onwards. Hence damages for the use of the Annexe be recovered @ Rs. 10/- per sq. yard which I consider as the minimum reasonable rent for the same. (d) The encroacher be ejected u/s 19(3) of Displaced Persons (Compensation & Rehabilitation) Act, 1954. 15. Since there is a glaring discrepancy between the description of the property comprising lot No. 119 sold at the auction in 1955 and the sale certificate issued for the same in 1963 in favour of the auction purchaser in as-much-as the certificate includes a different lot viz. lot No. 119(a) (Annexe) for which a separate bid was received, besides the lot for which Shri Khanna bid in the auction, there is a possibility of collusion between the office which issued the certificate of sale and the auction purchaser. A reference may be made to the appropriate authority to investigate into the matter with a view to start criminal proceedings against the delinquents.” 34.Still being aggrieved, three writ petitions, being CWPs No. 89 of 1972, M/s Himprashta Financiers (P) Ltd. Vs. A reference may be made to the appropriate authority to investigate into the matter with a view to start criminal proceedings against the delinquents.” 34.Still being aggrieved, three writ petitions, being CWPs No. 89 of 1972, M/s Himprashta Financiers (P) Ltd. Vs. U.O.I. & others, 101 of 1972, Shri Gian Chand Sardana & others vs. U.O.I. & Others and 114 of 1972, Smt. Shakuntla Kochhar vs. U.O.I. & others, came to be filed by some of the parties, which were decided by a Division Bench of this Court vide a common judgment dated 14.04.1975, Ex. PW-28/T, wherein it was held as under vide un-numbered paras at pages 8, 9, 10, 11, 12, 13: . “The second question is whether the Secretary had jurisdiction to change the boundaries in the sale certificate. The submission made is that the property had ceased to be a part of the compensation pool after it had been purchased by Shri Kala Ram Khanna in whose favour the sale certificate had also been issued in March, 1963. According to the petitioner once the property stood fully disposed of the Central Government ceased to have any power to deal with such property. He has also invited attention to rule 90(10)(15) of the Rules as also the Appendix XXII to these Rules. Besides this reliance is also placed on some authorities in order to show that on the issue of the sale certificate the title to the property had passed and the petitioner became the owner of the land. According to M/s Bombay Sald and Chemical Industries v. L.J. Johnson ( AIR 1958 S.C. 289 ) the approval of the auction bid by the Settlement Commissioner brings into existence a binding contract for the sale of the property, and the issue of the sale certificate brings about a transfer of the property. Although the title of the property passes by the issue of the sale certificate, the date on which the title passes is the date of confirmation of the sale, as was pointed out in Bishan Paul v. Mothu Ram ( AIR 1965 S.C. 1994 ), and the certificate relates back to the date when the sale became absolute. But the sale certificate cannot be said to pass title in respect of property which was plainly never the subject of the auction. But the sale certificate cannot be said to pass title in respect of property which was plainly never the subject of the auction. There can be no dispute that Shri Kala Ram, when he participated in the auction proceedings, knew that he was bidding for the Central Hotel (Main Building) only and there was never any understanding that the Central Hotel Annexe was also the subject matter of the same auction proceeding. The Central Hotel (Main Building) and the Central Hotel Annexe were regarded as two distinct lots for auction. Therefore, when Shri Kala Ram Khanna bid for the Central Hotel (Main Building) and clearly understood that his bid was in respect of that lot only, and the bid was accepted subsequently in respect of that lot and was later confirmed in relation to that lot, the sale certificate was clearly void to the extent that it included the Central Hotel Annexe also. Possession transferred consequent to the sale certificate in transferred consequent to the sale certificate in respect of the Central Hotel Annexe would not be possession in law and would confer no rights on Shri Kala Ram Khanna. Reliance has been placed by the petitioners on Tek Chand Chitkara v. Union of India (1968 D.L.T. 284). But that was a case where the suit was for recovery of possession of certain property on the allegation that it was part of a certain property sold to the plaintiff. A case such, as the present one, falls within the scope of Section 33 of the Act, and it is not necessary that suit should be filed for the purpose of correcting the entries in the sale certificate. All along the Central Hotel Annexe remained part of the compensation pool, and the nominal inclusion in the sale certificate by reference to boundaries of the property covered by the certificate did not take it out of the compensation pool. Section 33 of the Act is very wide in terms. As the provision suggests, the Central Government enjoys thereby all powers to call for the record of any proceeding and pass such order as in its opinion the circumstances of the case require. It has been urged that the issue of the sale certificate is not a proceeding. Section 33 of the Act is very wide in terms. As the provision suggests, the Central Government enjoys thereby all powers to call for the record of any proceeding and pass such order as in its opinion the circumstances of the case require. It has been urged that the issue of the sale certificate is not a proceeding. In my opinion, the proper construction to be put on the expression “proceeding” in Section 33 must be such as to give the most comprehensive meaning to that expression, and construed so it is clear that the expression ‘proceeding’in Section 33 must include anything that is done under the Act whether it partakes of a judicial character or is of ministerial nature. The further question is whether it was necessary that the Secretary should have given notice to the petitioners that he was going to act suo motu under Section 33 of the Act. The petitioners invoked the revisional jurisdiction of the Central Government, apparently under Section 24(4) of the Act, against the order of the Settlement Commissioner. The Secretary, exercising the powers of the Central Government, had revisional jurisdiction both under Section 24(4) and Section 33. By virtue of his revisional jurisdiction being invoked, he was seized of the entire case and it was open to him to pass such orders as the circumstances of the case required. There was nothing to prevent him from exercising the revisional jurisdiction both under Section 24(4) and under Section 33 for the purpose of effectively disposing of the case. And it was not necessary that he should have given notice to the petitioners that he was going to proceed to dispose of the case under Section 33. The petitioners were already before him, having invoked his revisional jurisdiction even though under Section 24(4), and being before him it was not necessary that they should be notified afresh of his intention to proceed under Section 33. Both Section 24(4) and Section 33 confer revisional jurisdiction, the difference being that the jurisdiction under Section 33 is wider than under Section 24(4). Inasmuch as by virtue of the applications made by the petitioners the Secretary was seized of the entire case, he was competent to exercise all necessary powers vested in him for the purpose of rendering a full and complete adjudication of the case. Inasmuch as by virtue of the applications made by the petitioners the Secretary was seized of the entire case, he was competent to exercise all necessary powers vested in him for the purpose of rendering a full and complete adjudication of the case. The petitioners must be presumed in law to have known the extent of the revisional jurisdiction vested in the Secretary, and that he should exercise all the jurisdiction in respect of the case before him. No fresh notice was necessary when he chose to exercise that jurisdiction under Section 33, and reliance in this behalf can also be placed on Rajnit Singh v. The Union of India and ors. 91962 P.L.R.44) and Labh Singh Atma Singh v. Union of India and others (AIR 1970 Delhi 171). Next is the question whether the Government was estopped from claiming the property sold to the petitioner. It has been observed above that it cannot be said on the facts of this case that Central Hotel Annexe was ever included in the property auctioned to Shri Kala Ram Khanna. It formed a distinct and separate lot. The Government never represented during the auction proceeding to Shri Kala Ram Khanna that the Central Hotel Annexe was included in the lot for which he was bidding. The sale certificate is void to the extent that it included within the boundaries set out there in the property comprising the Central Hotel Annexe. In the circumstances, the plea of estoppel cannot prevail. The further question is whether Section 41 of the Transfer of Property Act can be invoked. The boundaries in the sale certificate indicated that the Central Hotel Annexe was included in the property sold to Shri Kala Ram Khanna, but when the sale certificate specifically disclosed that it was only the Central Hotel (Main Building) which had been sold to him there was an apparent discrepancy between the description of the property by name and its delineation by boundaries. The transferees should have made further enquiry for the purpose of ascertaining whether the property proposed to be transferred to them was indeed the property of the transferor. In failing to do so, the transferees cannot be said to have taken reasonable care within the meaning of Section 41 of the Transfer of Property Act to ascertain that the transferor had power to make the transfer. In failing to do so, the transferees cannot be said to have taken reasonable care within the meaning of Section 41 of the Transfer of Property Act to ascertain that the transferor had power to make the transfer. The learned counsel for the petitioners had placed reliance on Sadiq Hussein and others v. Co-operative Central Bank Yeotmal and others (AIR 1952 Nagpur 106), and The Catholic Mission Presentation Convent by Mother Superior, Coimbatore and another v. Subhanna Goundan and others (AIR 1948 Madras 320). The principle laid down in these authorities is that the transferee is to prove that the transferor is the ostensible owner; that he is clothed with the insignia of ownership with the consent, express or implied, of the real owner; that the transfer is for consideration and that the transferee has acted in good faith taking reasonable care to ascertain that the transferor had power to transfer, and if any one of these elements is absent, the transferee is not entitled to the benefit of this section. There can be no dispute with the principles laid down in these authorities. But in view of the circumstances of the present case, the transferees cannot invoke the aid of section 41 of the Transfer of Property Act.” Accordingly, the writ petitions were dismissed with costs. 35.Indisputably, the common judgment rendered by a Division Bench of this Court in CWP No. 89 of 1972, M/s Himprashta Financiers (P) Ltd. vs. Union of India & others and the connected matters, as above, has attained finality without there being any further challenge against the same. Thus, it stood conclusively established that the property known as ‘Central Hotel Annexe’ did not form part of the property known as ‘Evacuee property No. 189/4 Central Hotel Main Building’purchased in auction by Shri K.R. Khanna, who in turn transferred the same in favour of A-1 Smt. Shakuntla Kochhar. 36. In order to rebut the findings handed out by the learned Special Judge under point No. 3, the learned Senior Counsel/Counsel for the appellants (A-2 to A-4) have drawn my attention to judgment dated 21 .06.1994 rendered by a learned Single Judge of this Court in Cr.M.P.(M) No. 925 of 1992, Shri J.K. Sharma vs. State of H.P. & others, whereby the proceedings in this case against co-accused Shri J.K. Sharma were quashed. In this regard suffice it to say that firstly the observations made by the learned Single Judge in the judgment dated 21.06.1994, can only be said to be limited for the purpose of disposal of Cr.M.P.(M) No. 925 of 1992 filed by co-accused Shri J.K. Sharma under Sections 482/397 Cr.P.C. and as such the same have no bearing, whatsoever, on the merits of this case. Secondly, in the face of the aforesaid Division Bench judgment dated 14.04.1975, Ex. PW-28/T, which besides being prior in point of time has been rendered by a Larger Bench and has indisputably attained finality, judgment dated 21.06.1994 of the learned Single Judge does not have any binding force on this Court. It appears that the Division Bench judgment dated 14.04.1975 in CWP No. 89 of 1972, M/s Himprashta Financiers (P) Ltd. vs. Union of India & others and the connected matters was not brought to the notice of the learned Single Judge by either of the parties to the said petition. 37.In order to buttress the above submission against the findings returned by the learned Special Judge on point No. 3, the learned Senior Counsel/Counsel for the appellants (A-2 to A-4) have further drawn my attention to common award dated 30.06.1997, Ex. D-1 (it shall be pertinent to notice here that another document, being letter dated 24th April, 1982, addressed by D.R.O. for Deputy Commissioner, Shimla, to the General Assistant to the Deputy Commissioner {Sub Registrar} , Shimla, inter alia, has also been exhibited as D-1) passed by the learned District Judge, Shimla, in L.Ref. No. 42-S/4 of 1996/89, Smt. Shakuntla Kochhar & others vs. the Land Acquisition Collector & others and the connected matter. In this regard I have no hesitation to say at the very outset that this submission appears to have been raised simply so as to be rejected outrightly for the reasons as already stated hereinabove in the preceding para of this judgment, which also equally applies to this submission. Furthermore, common award, Ex. D-1, which at the time of passing of the impugned judgment/order dated 24.09.2001/12.10.2001 was still under challenge before this Court in Regular First Appeal (RFA) No. 35 of 1998, as noticed by the learned Special Judge vide para 82 of the judgment, is still pending scrutiny of this Court in RFA Nos. Furthermore, common award, Ex. D-1, which at the time of passing of the impugned judgment/order dated 24.09.2001/12.10.2001 was still under challenge before this Court in Regular First Appeal (RFA) No. 35 of 1998, as noticed by the learned Special Judge vide para 82 of the judgment, is still pending scrutiny of this Court in RFA Nos. 327 of 1997, M/s Rangar Hotels Private Limited vs. The Land Acquisition Collector & others, 35 of 1998, Smt. Shakuntala Kochhar (deceased) vs. The Land Acquisition Collector & others, 191 of 1998, The Land Acquisition Collector & others vs. Smt. Shakuntla Kochhar and 45 of 1999, The land Acquisition Collector & others vs. M/s Rangar Hotel Prt. Ltd. All these RFAs alongwith another connected matter, being RFA No. 105 of 1994, Shri Surinder Kumar Sud & others vs. State of H.P. & others stand connected. 38. Vide order dated 21.10.2010, passed by a learned Single of this Court in RSAs No. 277 and 282 of 1996, M/s. Himprastha Financiers (P) Ltd. and others vs. Union of India and others and Shri Shanti Swaroop Sardana and others vs. Union of India and another, respectively, also being connected matters, have been ordered to be heard before disposal of the aforesaid RFAs. These aspects have been ascertained by me from the records of the Registry to verify the factual position in this regard viz-a-viz the aforesaid observation made by the learned Special Judge in para 82 of the impugned judgment/order under challenge herein. 39.In view of the above, I have no hesitation, whatsoever, to conclude that the boundaries of evacuee property No. 189/4, Central Hotel Main Building, were wrongly described by including unsold area in the sale certificate, Ex. PW-1 1/F, and to this extent the findings returned by the learned Special Judge are borne out of evidence on record. 39.In view of the above, I have no hesitation, whatsoever, to conclude that the boundaries of evacuee property No. 189/4, Central Hotel Main Building, were wrongly described by including unsold area in the sale certificate, Ex. PW-1 1/F, and to this extent the findings returned by the learned Special Judge are borne out of evidence on record. 40.Now I shall take up for discussion and decision the findings returned by the learned Special Judge under points No. 4, 5, 6 and 7, given below, which are interconnected and require common appreciation of evidence and law: “POINT No. 4: Whether A-2 by virtue of being a Patwari and entrusted with the charge of Revenue Record pertaining to Station Ward, Chhota Shimla effected wrong, false, fictitious and illegal entries U-18 in the Parat Jamabandi Patwar Ext.PW12/A for the years 1950-51 to facilitate the illegal disposal of Evacuee property by A-1, by preparing such incorrect and false revenue record? POINT No. 5: Whether A-2 to A-4 wrongly entered, compared and attested mutation No. 998 dated 10.7.81 Ext.PW9/A and mutation No. 999 dated 10.7.81 Ext.PW9/B and thereby facilitated the execution of illegal sale deeds by A-1? POINT No. 6: In case points No. 1 to 5 are proved in affirmative of if either of the points stated above are proved in affirmative, whether A-2 to A-4 had committed the aforesaid illegal acts after entering into criminal conspiracy with their co-accused M.L.Kochhar (now deceased) B.L.Kochhar and A-1 and in pursuance of such criminal conspiracy, all or either of them cheated the Custodian Department or the Govt. and caused wrongful gain to themselves and corresponding loss to the said department of Govt.? POINT No. 7: In case any of the said points is proved in affirmative, whether A-2 to A-4 by virtue of being public servants at the time of committing aforesaid offences committed criminal misconduct and abused their position as public servants?” 41. It is alleged by the prosecution that wrong, false, fictitious and illegal entries (U 18) were effected by A-2 Bhau Singh Chauhan, the then Patwari in Parat Jamabandi Patwar, Ex. PW-12/A, for the year 1950- 51 to facilitate illegal disposal of evacuee property by A-1, Smt. Shakuntla Kochhar. It is further alleged that A-2, Bhau Singh Chauhan, A-3 Kahana Singh and A-4 Balak Ram Negi wrongly entered, compared and attested mutation No. 998 dated 10.07.1981, Ex. PW-12/A, for the year 1950- 51 to facilitate illegal disposal of evacuee property by A-1, Smt. Shakuntla Kochhar. It is further alleged that A-2, Bhau Singh Chauhan, A-3 Kahana Singh and A-4 Balak Ram Negi wrongly entered, compared and attested mutation No. 998 dated 10.07.1981, Ex. PW-9/A and mutation No. 999 dated 10.07.1981, Ex. PW-9/B, and thereby facilitated execution of illegal sale deeds by A-1, Smt. Shakuntla Kochhar. All these acts are said to have been committed by A-2 to A-4, namely Bhau Singh, Kahana Singh and Balak Ram Negi, respectively, in criminal conspiracy with their co-accused deceased M.L. Kochhar, deceased B.L. Kochhar and A-1 Smt. Shakuntla Kochhar and in pursuance of such conspiracy all or either of them cheated the custodian department of the Government and caused wrongful gain to themselves and corresponding loss to the said department of the Government. On these allegations it was further alleged that A-2 to A-4, namely Bhau Singh, Kahana Singh and Balak Ram Negi, respectively, by virtue of being public servants at the time of commission of the alleged offences committed criminal mis-conduct and abused their position as public servants. 42.However, there is no legally admissible evidence to fasten guilt against A-2 to A-4, namely Bhau Singh, Kahana Singh and Balak Ram Negi, respectively, on these counts and the findings returned by the learned Special Judge in this regard cannot be sustained. The reasons to arrive at this inference are set out hereinafter. 43. The incriminating entries in Parat Jamabandi Patwar, Ex. PW-12/A, mutation No. 998 dated 10.07.1998, Ex. PW-9/A and mutation No. 999 dated 10.07.1981, Ex. P?W-9/B, are said to have been incorporated by A-2 to A-4 on the basis of report, Ex. PW-61/B, of the Hand Writing Expert, PW-61, Shri N.C. Sood. However, this report is not admissible in evidence in view of the law laid down by the Hon’ble Supreme Court in State of Uttar Pradesh vs. Ram Babu Misra, AIR 1980 Supreme Court 791, wherein it has been held as under vide para 4 of the report: “4. The second paragraph of Sec. 73 enables the Court to direct any person present in Court to give specimen writings ‘for the purpose of enabling the Court to compare’ such writings with writings alleged to have been written by such person. The second paragraph of Sec. 73 enables the Court to direct any person present in Court to give specimen writings ‘for the purpose of enabling the Court to compare’ such writings with writings alleged to have been written by such person. The clear implication of the words ‘for the purpose of enabling the Court to compare’ is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of ‘enabling the Court to compare’ and not for the purpose of enabling the investigating or other agency ‘to compare’. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of S. 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, S. 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under S. 73 of the Evidence Act on the plea that it would help him to decide whether to institute a Civil Suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under S. 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?” 44.To the similar effect is the proposition of law enunciated by the Hon’ble Supreme Court in State of Haryana vs. Jagbir Singh and another, AIR 2003 Supreme Court 4377. This Court has also held on the same lines in Rakesh Kumar vs. Stae of H.P., 2001 (3) Shimla Law Cases 154 and State of Himachal Pradesh vs. Laje Ram and others, 2011 (2) Himachal Law Reporter (DB) 597. This Court has also held on the same lines in Rakesh Kumar vs. Stae of H.P., 2001 (3) Shimla Law Cases 154 and State of Himachal Pradesh vs. Laje Ram and others, 2011 (2) Himachal Law Reporter (DB) 597. 45.Except the report of the Hand Writing Expert, as above, which has not been found to be admissible in evidence, there is no evidence to prove that A-2 to A-4, namely Bhau Singh, Kahana Singh and Balak Ram Negi, respectively, are the authors of the aforesaid incriminating documents. PW-9, Shri Parma Nand, has stated during chief-examination that mutation No. 998 dated 10.07.1981, Ex. PW-9/A and mutation No. 999 dated 10.07.1981, Ex. PW-9/B, have been attested and sanctioned by A-4, Balak Ram Negi, and he is conversant with his hand writing and signatures, as he has been dealing correspondence with him. However, in cross- examination he has admitted that these mutations were not entered by A-4 Balak Ram Negi, in his presence. He has further admitted that Balak Ram Negi never signed any documents in his presence. In such circumstances, oral evidence with regard to A-4, Balak Ram Negi, being author of these documents cannot be safely relied upon to fasten any liability against him. 46.The curative provision of law enacted by the legislature in the shape of Section 31 1A, which is extracted below, to meet the above situation was brought on the statute book only with effect from 23.06.2006 and is not applicable to the facts and circumstances of the present case, being latter in point time: “311A. Power of Magistrate to order person to give specimen signatures or handwriting. Power of Magistrate to order person to give specimen signatures or handwriting. – If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shal give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.” 47.The above discussion leads me to hold that the impugned judgment of conviction/order of sentence dated 24.09.2001/12.10.2001, as far as the same relate to A-2, Bhau Singh Chauhan, A-3, Kahan Singh and A-4, Balak Ram Negi, are not legally sustainable, entitling them for acquittal, which is ordered accordingly by accepting their appeals. Consequently, the impugned judgment/order dated 24.09.2001/1 2.1 0.2001, shall stand modified to that extent. The respective amounts of fine, if already realized from them, shall be liable to be refunded to them after expiry of the period of limitation for filing appeal against this judgment in which event orders of the Hon’ble Appellate Court shall prevail. 48.Let this judgment be placed on the records of Criminal Appeal No. 595 of 2001, Balak Ram Negi vs. State of H.P. and duly authenticated copies thereof be placed on the records of Criminal Appeal No. 597 of 2001, Kahna Singh vs. State of H.P. and Criminal Appeal No. 613 of 2001, Bhau Singh Chauhan vs. State of H.P.