Research › Search › Judgment

Punjab High Court · body

2018 DIGILAW 3649 (PNJ)

Raj Kumar v. State Of Punjab And Another

2018-08-28

ARVIND SINGH SANGWAN

body2018
JUDGMENT Arvind Singh Sangwan, J. - Prayer in this petition is for setting-aside the order dated 07.10.2013 passed by the Sub-Divisional Judicial Magistrate, Gidderbaha, vide which respondent No.2/accused No.2 was discharged in criminal complaint No.62-1 dated 06.08.2009 filed by the petitioner under Sections 167, 420, 465, 466, 467, 468, 471 and 120-B IPC as well as the order dated 01.10.2014 (Annexure P3) passed by the Sessions Judge, Sri Muktsar Sahib, dismissing the appeal filed by the petitioner. 2. Brief facts of the case are that the complainant Raj Kumar filed a criminal complaint against the respondents under Sections 167, 420, 465, 466, 467, 468, 471 and 120-B IPC with the allegation that accused Mander Singh, who was previously known to the complainant, approached the complainant and represented him that he is a co-sharer in Khewat No.218 min of 265 kanals 16 marlas land situated within the revenue limits of village Rukhala, Tehsil Gidderbaha, District Muktsar. The accused had shown one jamabandi dated 24.12.2007 in respect of the above said Khewat number, wherein the accused Mander Singh along with his mother and sister were recorded as co-sharers and they offered to sell land measuring 18 marlas i.e. 360/5316 share to the complainant, out of the above said land. The complainant accepted the said offer and in this regard, an agreement of sale was executed by accused No.1 Mander Singh on 31.12.2007 in favour of the complainant for a consideration of Rs. 1,25,000/- per acre and after receiving Rs. 2,70,000/- as earnest money from the complainant, the accused Mander Singh agreed to get the sale deed registered before 15.01.2008. It is further stated that jamabandi, on the basis of which the accused Mander Singh had executed the agreement of sale dated 31.12.2007, was issued by accused Keshwa Nand, Patwari. The complainant kept on waiting in the office of Sub-Registrar, on the due date of registration of the sale deed but, the accused Mander Singh did not turn up. The complainant then approached the accused Keshwa Nand for obtaining a fresh copy of jamabandi to file a civil suit against Mander Singh, but Keshwa Nand kept on prolonging and when the complainant pressurized Keshwa Nand, only then he issued the jamabandi. The complainant then approached the accused Keshwa Nand for obtaining a fresh copy of jamabandi to file a civil suit against Mander Singh, but Keshwa Nand kept on prolonging and when the complainant pressurized Keshwa Nand, only then he issued the jamabandi. When the complainant tallied the fresh jamabandi with the previous one, he was shocked to see that the Khewat No.218 is not having 265 kanals 16 marlas of land but of 65 kanals 16 marlas. In this way, the accused Mander Singh has cheated the complainant with the help of accused Keshwa Nand. 3. Thereafter, the petitioner/complainant in his preliminary evidence examined himself as CW1 and CW2 Sanjeev Sharma, an Handwriting Expert. 4. The trial Court, thereafter, summoned respondent No.2/accused along with accused Mander Singh. It would be relevant to mention here that accused Mander Singh was declared as proclaimed offender vide order dated 06.12.2012 and the learned counsel for the petitioner stated at the bar that he has died. 5. The respondent No.2 appeared before the trial Court and he was granted bail and the case was then fixed for pre-charge evidence. The petitioner appeared himself as CW1 and examined Sanjeev Sharma, an Handwriting and Fingerprint Expert as CW2 and also produced on record jamabandi Ex.C1 for the year 2004-05 and the agreement dated 31.12.2007 as Ex.C2 and copy of the jamabandi for the year 2004-05 issued on 27.07.2009 as Ex.C3. 6. The trial Court, thereafter, discharged respondent No.2 by observing that the complaint was filed on 06.08.2009 whereas the stipulated date for filing an execution of the sale deed was 15.01.2008 and no suit for specific performance was filed by the complainant. It is further observed by the trial Court that vide the agreement, the accused Mander Singh has agreed to sell his share as depicted in the jamabandi Ex.C3 and since the complainant has not taken any action either for specific performance of the agreement or for the refund of earnest money against accused No.1 Mander Singh, no offence is made out against accused No.2, who was the Patwari and had only issued the jamabandi Ex.C1. The trial Court further recorded a finding that even as per own admission of the complainant, the accused Keshwa Nand, Patwari was not present at the time of execution of the agreement and he did not prepare the jamabandi in his presence. The trial Court further recorded a finding that even as per own admission of the complainant, the accused Keshwa Nand, Patwari was not present at the time of execution of the agreement and he did not prepare the jamabandi in his presence. Accordingly, the trial Court has held that the material available on record is not sufficient to frame charge against accused/respondent No.2, for which he was summoned and thus, discharged him vide impugned judgment dated 07.10.2013. 7. The petitioner, thereafter, preferred an appeal before the Court of Sessions and the same was also dismissed vide judgment dated 01.10.2014. The operative part of the said judgment is reproduced as under:- "12. I have gone through the judicial file. Complainant and respondent No.1 Mander Singh executed one agreement dated 31.12.2007 qua the sale of land and copy of the agreement is on the file. It is admitted by the petitioner that he has not filed suit for specific performance till today against Mander Singh. Now, the limitation stands expired but, the petitioner did not file suit for specific performance. 13. Ex.C3 jamabandi for the yea 2004-05 depicts that land is 65K-16M in which Mander Singh son and Rajo daughter of Gurcharan Singh are recorded owner to the extent of 88/1316 share. In the remarks column inheritance of Malkit Kaur vide mutation No.2859 to the extent of 29/1316 of land measuring 65K-16M i.e. 1K-9M stands sanctioned in the name of Mander Singh and Rajo. At the same time, second note is regarding mutation No.2912 vide which Mander Singh sold 2K-4M in favour of Shivraj Singh son of Naib Singh and this jamabandi was issued by the respondent No.2 on 27.7.2009. 14. Coming to the document Ex.C1 jamabandi for the year 2004-05 issued by the respondent No.2 dated 24.12.2007 in which Mander Singh and Raj Kaur are recorded owners to the extent of 88/1316 share and there is also a note regarding sanctioning of mutation No.2859 regarding inheritance of Malkit Kaur in the name of Mander Singh and Rajo. The total alnd is recorded 65K16M KITTEY 10 from Khewat No.218 min and Khatoni No.375. However, the digit 2 is added in front of 65K-16M and converted it to 265K-16M but with naked eye at both the placed digit 2 is added with different ink. In the remarks column note is with red pen. The total alnd is recorded 65K16M KITTEY 10 from Khewat No.218 min and Khatoni No.375. However, the digit 2 is added in front of 65K-16M and converted it to 265K-16M but with naked eye at both the placed digit 2 is added with different ink. In the remarks column note is with red pen. Digit 2 is with separate ink whereas 65K-16M is with different ink. Similar is the situation where total of the khewat is mentioned and digit 2 is added with different pen. No ill will is alleged between the complainant and the respondent No.2 Keshwa Nand, Patwari and he has taken the plea in the cross-examination that complainant and Mander Singh have committed fraud. The comparison of finger print is a complete science as has been held by our own Hon'ble High Court as well as Hon'ble Apex Court in so many authorities but, the comparison of handwriting is not a complete science. When in both the jamabandis, share of Mander Singh is specifically recorded and complainant is supposed to go through the jamabandi qua his share and non-filing of the suit for specific performance by the complainant is one of the ground to discard the claim against the respondent No.2. 15. In the light of discussion made above, the learned lower court has rightly discharged the accusedrespondent No.2 Keshwa Nand, revenue Patwari. The revision petition is without merit and the same is dismissed. Lower court record along with copy of this judgment be remitted forthwith. Revision petition file be consigned to the record room." 8. Counsel for the petitioner has relied upon the report of the Handwriting Expert Ex.C1, where an observation has been made that the writing on Ex.C1 is made by the same person i.e. Keshwa Nand and, therefore, it is proved that the interpolation made in the copy of jamabandi Ex.C1 was by accused No.2. It is further submitted that a comparison of 02 jamabandis i.e. Ex.C1 prepared in the year 2004 and another copy of the same jamabandi Ex.C3 prepared in the year 2009, show different area of land and, therefore, accused No.2 has committed interpolation in the revenue records. 9. It is further submitted that a comparison of 02 jamabandis i.e. Ex.C1 prepared in the year 2004 and another copy of the same jamabandi Ex.C3 prepared in the year 2009, show different area of land and, therefore, accused No.2 has committed interpolation in the revenue records. 9. In reply, counsel for respondent No.2/accused has submitted that he is neither a beneficiary nor a signatory of the agreement to sell dated 31.12.2007 and as per own admission of the complainant, accused No.2 was not present at the spot when the said agreement was executed. It is further submitted that the complainant has admitted in the cross-examination that the disputed jamabandi Ex.C1, in which the interpolation of the area of land has been made, was not prepared by accused No.1 in his presence and it was accused No.1, who had offered to sell 18 kanals of his land i.e. 360/5316 share out of land measuring 265 kanals 12 marlas. 10. Counsel for respondent No.2 has further argued that in order to show his bona fide, the complainant has neither filed any suit for specific performance nor for recovery of refund of the earnest money and the complaint has been filed much after the stipulated date i.e. 15.01.2008. It is further submitted that in the absence of availing the civil remedy, the filing of the present complaint by converting the civil dispute into a criminal litigation is not maintainable. It is also submitted that it is own case of the complainant that accused No.1 had informed him that he had brought the jamabandi from the Patwari and as per the statement of the Handwriting Expert i.e. CW2, the only opinion given is that the disputed and the standard signatures are of the same person and it does not prove that the interpolation was made by accused No.2. Lastly, it is submitted that no motive is attributed towards accused No.2 and the only allegation is that the jamabandi Ex.C1 was prepared by him. 11. After hearing the counsel for the parties, I find no merit in the present petition. It is own case of the complainant that when the agreement to sell was executed by accused No.1 Mander Singh, he informed the complainant that he has obtained the disputed jamabandi Ex.C1 from the Patwari and accused No.2 was not present at the spot. 11. After hearing the counsel for the parties, I find no merit in the present petition. It is own case of the complainant that when the agreement to sell was executed by accused No.1 Mander Singh, he informed the complainant that he has obtained the disputed jamabandi Ex.C1 from the Patwari and accused No.2 was not present at the spot. Secondly, the agreement is between the complainant and accused No.1 and the payment of the earnest money was received by accused No.1 and, therefore, accused No.1 is neither the signatory to the agreement to sell nor the beneficiary as per the averments made in the complaint itself. 12. The complainant has failed to prove even his bona fide regarding the agreement to sell as neither he has filed any suit for specific performance nor for the refund of earnest money after the expiry of the stipulated date fixed for execution of the sale deed by accused No.1, therefore, the complainant has filed the present complaint just to give civil dispute the colour of criminal litigation. Even the argument raised by counsel for the petitioner that in the report Ex.C1, it is stated that the signature and the body of writing of Ex.C1 are written by the same person, do not prove that the interpolation in the jamabandi Ex.C1 was done by accused No.2 as the same was prepared on 24.12.2007 and remained in possession of accused No.1 till 31.12.2007 when the alleged agreement to sell was executed and, therefore, the complainant has failed to prove that the cutting in the jamabandi, if any, was made by accused No.2. Even otherwise, both the Courts below have recorded a finding of fact holding that no sufficient evidence or material has come on record to frame charge against accused No.2, therefore, finding no illegality or perversity in the impugned orders, I find no ground to interfere in the findings recorded by the Courts below. 13. For the foregoing reasons, the petition fails and is accordingly dismissed.