IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M- 28967 of 2008
Date of decision: January 14, 2009
Kulwant Singh
.... Petitioner
Versus
State (U.T. Chandigarh) and others
.... Respondents
Present: Mr. ADS Sukhija, Advocate for the petitioner.
Mr. Puneet Bassi, Advocate for Mr. Hemant Bassi, Advocate
for respondent No.1, U.T., Chandigarh.
Mr. Baljeet Singh, Advocate for respondents No.2 and 3.
***
S.S. SARON, J.
This petition has been filed under Section 482 of the Code of Criminal
Procedure (“CrPC” – for short) praying that the petitioner be allowed to compound
the offence punishable under Section 420 Indian Penal Code (‘IPC’ – for short) for
which he has been convicted by the learned Judicial Magistrate, Ist Class,
Chandigarh vide order dated 13.11.2007 (Annexure P5). A further prayer is made for
quashing the order dated 22.9.2008 (Annexure P1) passed by the learned Additional
Sessions Judge, Chandigarh whereby the learned Court has declined the prayer of the
petitioner and respondents No.2 and 3 for compounding the offence.
Case FIR No.55 dated 24.4.2005 was registered at Police Station
Industrial Area, Chandigarh for the offences punishable under the provisions of the
Punjab New Capital (Periphery) Control Act, 1952 (“Act” – for short) and Section
420 IPC. The complainant SK Setia was posted as Land Acquisition Officer, U.T.,
Chandigarh. He reported that Suresh Kumar, Kanungo had informed that Kulwant
Singh (petitioner) had sold some land to one Sh. Ram Dass (Mochi) and Sh.
Crl. Misc. No. M- 28967 of 2008 [2]
Jagat Ram (respondent No.2) with a false promise and inducement that they can
construct a house for residential purposes. It was further alleged that the petitioner in
fact gave possession of the forest land to Jagat Ram (respondent No.2) and Neelam
Devi (respondent No.3) after taking money. Besides, the petitioner had also
constructed six godowns on agricultural land comprised in Rectangle No.9, Khasra
Nos. 13/2 and 14/2 in Village Daria. The construction had been raised in violation of
the provisions of Sections 5 and 6 of the Act. Besides, the constructed area was
being misused for commercial purposes as the petitioner had given two godowns to
Sh. Pawan Goel of M/s Sadhu Ram & Co. Distributor and Wholesale Stockist, SCO
No.41, Sector 7-C, Chandigarh. This change of use of agricultural land, it was
alleged, was in violation of Section 11 and was punishable under Section 12(2) of the
Act. On these allegations a request was made for registration of FIR for fraud and
cheating as also for the offence punishable under Section 12 of the Act. FIR was
registered and statements of witnesses recorded. After completion of investigation,
challan was filed in Court. On finding a prima facie case against the petitioner,
following charges were framed against him by the learned Judicial Magistrate Ist
Class, Chandigarh:-
“That prior to 24.4.2005 you above named
accused sold five marlas plot to Jagat Ram and
Neelam Devi and thereby committed offence
punishable under Section 12 of the Punjab New
Capital (Periphery) Control Act, 1952 and within my
cognizance.
Secondly, that on 27.2.1996 you above named
accused sold 5 marlas of land to Neelam Devi but by
dishonest inducement gave possession of five marlas
of land which included 4 marlas of land belonging to
Crl. Misc. No. M- 28967 of 2008 [3]Forest Department which has to be vacated causing
wrongful loss to said Neelam Devi and thereby
committed an offence punishable under Section 420
IPC and within my cognizance.
Thirdly, on the same date you sold five marlas
of land to Neelam Devi with false promise and
inducement that they can construct a house for
residential purpose thereon and further fraudulently
and dishonestly misrepresented that land is free from
all encumbrances whereas such land use conversion
was not permissible under the Punjab New Capital
(Periphery) Control Act, 1952 and thereby committed
offence punishable under Section 420 IPC.
Fourthly, that on 22.10.1993 you above named
accused sold 5 marlas of land to Jagat Ram but by
dishonest inducement gave possession of five marlas
of land which included 1/2 marla land belonging to
forest department which has to be vacated causing
wrongful loss to said Jagat Ram and thereby
committed an offence punishable under Section 420
IPC and within my cognizance.
Fifthly, on the same date you sold five marlas
of land to Jagat Ram with false promise and
inducement that they can construct a house for
residential purpose thereon and further fraudulently
and dishonestly misrepresented that land is free from
all encumbrances whereas such land use conversion
Crl. Misc. No. M- 28967 of 2008 [4]
was not permissible under the Punjab New Capital
(Periphery) Control Act, 1952 and thereby committed
offence punishable under Section 420 IPC.
And I hereby direct that you be tried by this
Court for the alleged offence committed by you.”
After framing the charges, prosecution in order to prove its case,
examined Suresh Kumar (PW1), Ramesh Gill (PW2), Jagat Ram (PW3) (respondent
No.2), Balraj Patwari (PW4), SK Setia (PW5), Joginder Singh (PW6), SI Yad Ram
(PW-7), SI Ram Parkash (PW-8), Neelam Devi (PW-9) (respondent No.3), Inspector
Moti Ram (PW-10), GS Saini (PW-11), Chandi Prasad (PW-12) and Inspector Ved
Pal (PW-13). The statement of the petitioner in terms of Section 313 CrPC was
recorded and the substance of the evidence appearing against him was put to him.
In defence, the petitioner examined Som Nath (DW-1) and Rajinder Pal
Sharma (DW-2).
The learned Judicial Magistrate Ist Class, Chandigarh after considering
the evidence and material on record, held that the prosecution had failed to prove the
charge under Section 12 of the Act and acquitted the respondents of the said charge
under Section 12 of the Act. Similarly no offence under Section 420 IPC was held to
be made out insofar as the plots sold to Jagat Ram and Neelam Devi were sold on a
false promise that these were free from all encumbrances and that residential
construction was permissible thereon. However, it was held that the prosecution had
succeeded in proving charge for the offence under Section 420 IPC regarding the
fraud played by the petitioner with Jagat Ram (respondent No.2) and Neelam Devi
(respondent No.3) by taking money for his own land but actually delivering to them
possession of part of the forest land instead of his own land, which they had to later
on surrender to the forest department. The petitioner was sentenced to undergo
Crl. Misc. No. M- 28967 of 2008 [5]
rigorous imprisonment for a period of two years, besides, to pay a fine of Rs.5000/-
and in default of payment of fine, he was ordered to undergo further imprisonment
for a period of 15 days. The petitioner aggrieved against the order to the extent that
he had been convicted and sentenced, filed an appeal before the learned Sessions
Judge, Chandigarh. In appeal, the petitioner filed an application seeking permission
to compound the offence. The learned Additional Sessions Judge, Chandigarh vide
order dated 22.9.2008 (Annexure P1) declined the said prayer. It was observed that
in the present case, the allegations levelled against the petitioner were established
that he had not only cheated Jagat Ram (respondent No.2) and Neelam Devi
(respondent No.3) but also cheated the Forest Department, U.T. Chandigarh as well
as the Union Territory, Chandigarh. Therefore, it was observed that in the absence of
any application of the Land Acquisition Officer, U.T. Chandigarh, permission cannot
be accorded to compound an offence on the application of Sh. Jagat Ram (respondent
No.2) and Smt. Neelam Devi (respondent No.3). As such the application filed by the
petitioner was dismissed. Aggrieved against the same, the petitioner has filed the
present petition.
Mr. ADS Sukhija, Advocate learned counsel appearing for the petitioner
has submitted that the petitioner has been convicted only for the offence for charges
No.3 and 4 framed against him on the allegations that the petitioner sold five marlas
of land to Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) and
they wrongfully gave possession of forest land to the petitioner. It is submitted that
the evidence and material on record shows that the possession of forest land was
never given to the petitioner. A reference has been made to the deposition of S.K.
Setia complainant (PW-5), wherein he has stated that the land of the Forest
Department and the local land owners was demarcated in the presence of revenue
officials and both were in their respective possessions. Therefore, it is submitted that
the offence under Section 420 IPC being compoundable in terms of Section 320 (2)
Crl. Misc. No. M- 28967 of 2008 [6]
CrPC with the person cheated which in the present case would be Jagat Ram
(respondent No.2) and Neelam Devi (respondent No.3), the petition is liable to be
allowed.
Mr. Puneet Bassi, Advocate learned counsel appearing for U.T.
Chandigarh submits that the order passed by the learned Additional Sessions Judge,
Chandigarh is just and proper and the application seeking compounding the offence
has rightly been dismissed.
Mr. Baljeet Singh, Advocate learned counsel appearing for respondents
No.2 and 3 has submitted that the matter has been compromised between the parties
and therefore, the application seeking the compounding of the offence is liable to be
allowed in view of the provisions of Section 320 (2) CrPC.
I have given my thoughtful consideration to the matter and also perused
the record of the case. The statement (Annexure P4) of S.K. Setia (PW-5) who was
Land Acquisition Officer, UT, Chandigarh in the year 2005 has been placed on
record. It is stated by S.K. Setia (PW-5) that he had made a complaint (Ex.PW5/1) to
Senior Superintendent of Police, UT, Chandgiarh against the petitioner requesting the
latter to register a FIR. It is submitted that there were three elements of the
complaint one of which was the wrong handing over of the forest land to the vendees
which was testified by the Forest Department. It is also learnt that the complaint has
been compared by the Department. However, the complaint regarding violation of
Section 12 (2) of the Act was still persisting. Besides, the accused Kulwant Singh
(petitioner) constructed six godowns of agricultural land in rectangle No.9, Khasra
Nos13/2 and 14/2 in Village Daria. The construction had been raised without any
permission under the provision of the Act for commercial gains. S.K. Setia (PW-5)
had passed demolition order on 18.1.2002 (Ex.PW5/3). In cross-examination, S.K.
Setia (PW-5) accepts it as correct that the land of the Forest Department and the local
land owners was demarcated in the presence of revenue officials and both were in
Crl. Misc. No. M- 28967 of 2008 [7]
their respective possessions.
In the face of the said deposition of the complainant SK Setia (PW-5),
the learned counsel for U.T. Administration has not been able to dispute the fact that
the forest land has not been encroached upon or that possession of the forest land is
with respondents No.2 and 3. The cross-examination of the complainant S.P. Setia
(PW-5) as already noticed indeed shows that it is accepted by him as correct that the
land of Forest Department and local land owners was demarcated in the presence of
the revenue officials and both were in their respective possession. Therefore,
evidently it is not a case where the forest land has been proved to be transferred or
that possession was given in pursuance of the sale deed executed by the petitioner in
respect of his land in favour of respondents No.2 and 3. In fact even the charge that
has been framed against the petitioner is that the petitioner had sold five marlas of
land to Neelam Devi (respondent No.3) but by dishonest inducement gave possession
of five marlas of land which included four marlas of land belonging to Forest
Department which had to be vacated causing wrongful loss to Neelam Devi
(respondent No.3). Besides, the petitioner sold five marlas of land to Jagat Ram
(respondent No.2) but by dishonest inducement gave possession of five marlas of
land which included half marlas of land belonging to Forest Department which had
to be vacated causing wrongful loss to Jagat Ram. Therefore, evidently the loss
regarding transfer of land for which the petitioner had been charged is attributed to
respondents No.2 and 3. They have admittedly compounded the offence with the
petitioner. Besides, during demarcation proceedings, the forest land has been
demarcated and both the Forest Department and the purchasers and other land owners
are in possession of the land according to their entitlement.
In the circumstances, there is no reason as to why the application for
compounding the offences in terms of Section 320 (2) CrPC be not allowed,
Crl. Misc. No. M- 28967 of 2008 [8]
especially when the persons aggrieved i.e. respondents No.2 and 3 have no grievance.
In terms of sub-Section (2) of Section 320 CrPC, the offences punishable under the
Sections of the IPC specified in the first two columns of the table next following
may, with the permission of the Court before which any prosecution for such offence
is pending, be compounded by person mentioned in the third column of that table.
Section 420 IPC relating to the offence of cheating can be compounded with the
permission of the Court with the person who has been cheated. As already noticed,
respondents No.2 and 3 who are stated to have been cheated and for which the
petitioner was charged have compounded the offence. The petitioner has been
acquitted of the other offences under the Act. Therefore, there is no reason as to why
he should not be allowed to compound the offence under Section 420 IPC for which
necessary permission is also granted.
Accordingly, the Crl. Misc. petition is allowed and the order dated
22.9.08 (Annexure P1) passed by the learned Additional Sessions Judge, Chandigarh
is set aside and the application seeking compounding the offence is allowed. The
petitioner shall accordingly stand acquitted of the charge under Section 420 IPC as
well relating to the fraud played by the petitioner with Jagat Ram (respondent No.2)
and Neelam Devi (respondent No.3) by taking money from his own land but actually
delivering to them the possession of part of the forest land.
(S.S. SARON)
JUDGE
January 14, 2009
amit