Crl. Rev. No. 2349 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Rev. No.2349 of 2007
Decided on : 08-07-2009
Malkiat Singh
....Petitioner
VERSUS
Sohan Singh and another
....Respondents
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. B.S.Jaswal, Advocate for the petitioner.
Mr. P.K.Gupta, Advocate for complainant-respondent no.1
Mr. B.B.S.Teji, AAG, Punjab.
MAHESH GROVER, J
This petition has been directed against the order dated
10.10.2007. By virtue of the impugned order the learned Additional
Sessions Judge set aside the order dated 13.8.2005 passed by the Judicial
Magistrate Ist Class dismissing the complaint preferred by the present
respondent no. 1 and discharged the petitioners who were arrayed as
accused therein.
Briefly stated the facts of the case are that respondent no.1 had
initiated a criminal complaint against the petitioner alleging that he had
forged the sale deed and thereby committed an offence punishable under
Sections 420, 426, 468, 471, 193, 194, 195, 196, 199 IPC. It was averred by
him that he alongwith other persons namely Durga Dass s/o Harnam Singh,
Lal Singh, Durga Singh and Yog Raj are co-sharers in the land out of which
Durga Singh has sold some portion of his share to the petitioner. The
Crl. Rev. No. 2349 of 2007 2
dispute pertains to only one Khasra no.190 (0-17) which was allegedly sold
by Durga Singh to the petitioner comprising 3 marlas of land. The
complainant alleged that prior to the filing of the complaint a civil suit had
been initiated by the present respondent seeking to injunct the petitioner
from interfering in his peaceful possession of land which included the
aforesaid Khasra no. and in that suit the present petitioner has set up a sale
deed allegedly executed by Durga Singh which included this khasra no. In
the complaint it was highlighted that although the sale deed which was
produced in Court mentions khasra no. 190 yet in the records of the Sub
Registrar pertaining to this sale deed the aforesaid khasra no. does not find
mention. According to the complainant-respondent no.1 since the sale deed
produced in Court was at variance with the record of the sale deed which
was available in the office of the Sub Registrar, the petitioner had
committed forgery and therefore liable to be proceeded against.
After recording the preliminary evidence the petitioner
alongwith acussed Durga Singh were summoned to face the trial. Two other
persons namely Balbir Singh and Chanchel Singh were reported to be dead
during the pendency of the complaint. Durga Singh also died and it is the
petitioner alone who was facing the proceedings pursuant to the complaint.
The respondent no.1 who is the complainant got recorded his pre-charge
evidence in the shape of CW1 Surjit Kaur and also examined himself as
CW2. He broadly deposed on the lines of the complaint. Copy of the sale
deed was produced as Ex.D1 while copy of Jamabandi as Ex. D2 and copy
of the entry in the register of the scribe of the sale deed as Ex. D3.
Learned Trial Court while considering the pre-charge evidence
intensively relied on the judgment of the learned Civil Court which
Crl. Rev. No. 2349 of 2007 3
proceedings have been initiated by the complainant-respondent himself and
concluded that no case for proceeding against the petitioner has been made
out and dismissed the complaint and also discharged the petitioner which
resulted in filing of the srevision petition before the Court of Additional
Sessions Judge who accepted the same and remanded the case back to the
Trial Court to re-consider the matter by appraising the pre-charge evidence
and deciding the matter afresh. This has resulted in filing of the present
revision petition.
It has been contended by the learned counsel for the petitioner
that the sale deed in question was executed on 8.2.1995 by Durga Singh in
his favour and the suit was filed by the respondent no.1 instantly on
13.3.1995. The veracity of the sale deed was tested before Trial Court
where Durga Singh appeared and verified to the execution of the sale deed
pertaining to Khasra no. 190. The civil suit was dismissed and the appeal
preferred by the respondent was also dismissed. After lapse of 6 years the
complaint has been filed on 11.1.2000. It is the contention of the learned
counsel for the petitioner that the sale deed as such was never challenged by
the complainant-respondent no.1 and the same was to his knowledge as he
has contested the proceedings in the Civil Court all through out. Therefore,
the complaint which has been filed after a lapse of 6 years is belated and
ought to have been dismissed on this count alone. He has contended that
the impugned order passed by the Revisional Court has resulted in grave
mis-carriage of justice and the finding that the pre-charge evidence has not
been appreciated is erroneous only because the testimony of complainant
and one Surjit Kaur had been recorded. Besides only three documents out of
Crl. Rev. No. 2349 of 2007 4
which two were already under the scrutiny of the Civil Court and one is
entry in the register of the scribe of the sale deed, which per se even if it is
accepted could not establish the criminal intent on the part of the petitioner
so as to force him to face the proceedings in a criminal complaint.
On the other hand, learned counsel for the respondent no.1 has
contended that the proceedings in the civil suit are totally independent of
the criminal proceedings and since the complainant had come to the know
of the forgery after the decision of the suit he initiated the complaint. He
placed reliance on the Apex Court judgment in case Rashida Kamaluddin
Syed & Anr. Versus Shaikh Saheblal Marden (dead) through Lrs &
Anr. 2007(2) Apex Court Judgements 252 wherein in para 27 it has been
observed as follows:-
“Para 27 : – Finally, the contention that a civil suit
is filed by the complainant and is pending has also not
impressed us. If a civil suit is pending, an appropriate order
will be passed by the competent Court. That, however, does
not mean that if the accused have committed any offence,
jurisdiction of criminal court would be ousted. Both the
proceedings are separate, independent and one cannot abate or
defeat the other.”
I have heard learned counsel for the parties and have perused
the impugned judgments and also the relevant documents which have been
produced alongwith petition.
Concededly, the parties were at loggerheads by way of a civil
suit in which the complainant-respondent no.1 sought to injunct the
petitioner from interfering in his possession. The petitioner in order to
Crl. Rev. No. 2349 of 2007 5
defend his rights in a civil suit has set up a plea that the sale deed executed
by Durga Singh included the disputed khasra no. 190. The foremost fact
that has to be noticed in favour of the petitioner is that Durga Singh himself
appeared as witness before the Civil Court and testified to the execution of
the sale deed in favour of the petitioner. It has to be noticed that the sale
deed which is produced and supported by the vendor Durga Singh reflected
this Khasra no.190. At no point of time did the vendor raise this objection
that Khasra no. 190 was not part of sale deed and was not intended to be
sold and that is why the finding was returned in favour of the petitioner
establishing his right in the property in question. A perusal of the entire
facts reveal that it is essentially a civil dispute. The complainant had never
challenged the sale deed to say it is erroneous. He has only pleaded
injunction on the basis of being a co-sharer in the property and in that case
the vendor supported the factum of sale deed. The respondent no.1-
complainant is an alien to this fact. He thus has no locus to say that the
petitioner has committed any criminal offence since the allegations pertain
to the tampering of the sale deed which in case was supported by the
vendor. Besides, the complainant was in the know of the sale deed all
through out ever since its execution on 8.2.1995 which is reflected from the
prompt filing of the suit in March, 1995 yet he chose to file the complaint
on 11.1.2000 after he lost battle in Civil Court. It is clear from the aforesaid
that the complainant is merely trying to abuse the process of law by
resorting to criminal process when the dispute essentially was of civil nature
and the filing of the complaint eventually as an abuse of the process of law
has been done belatedly. The Court of revision was therefore clearly in
error by remitting the matter back to the Trial Court which had correctly
Crl. Rev. No. 2349 of 2007 6
appreciated the facts. In this view of the matter, the present petition is
accepted and the impugned order dated 10.10.2007 passed by the Revisional
Court is set aside.
July 08, 2009 (Mahesh Grover) rekha Judge