{"id":138369,"date":"2009-01-14T00:00:00","date_gmt":"2009-01-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-vs-state-u-t-chandigarh-and-on-14-january-2009"},"modified":"2018-01-23T00:39:14","modified_gmt":"2018-01-22T19:09:14","slug":"kulwant-singh-vs-state-u-t-chandigarh-and-on-14-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-vs-state-u-t-chandigarh-and-on-14-january-2009","title":{"rendered":"Kulwant Singh vs State (U.T. Chandigarh) And … on 14 January, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Kulwant Singh vs State (U.T. Chandigarh) And … on 14 January, 2009<\/div>\n
 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH\n\n\n            Crl. Misc. No. M- 28967 of 2008\n\n                                           Date of decision: January 14, 2009\n\nKulwant Singh\n                                                       .... Petitioner\n\n                  Versus\n\nState (U.T. Chandigarh) and others\n\n                                                       .... Respondents\n\n\nPresent:    Mr. ADS Sukhija, Advocate for the petitioner.\n\n            Mr. Puneet Bassi, Advocate for Mr. Hemant Bassi, Advocate\n            for respondent No.1, U.T., Chandigarh.\n\n            Mr. Baljeet Singh, Advocate for respondents No.2 and 3.\n\n                        ***\n\nS.S. SARON, J.\n<\/pre>\n
            This petition has been filed under Section 482 of the Code of Criminal<\/p>\n
Procedure (“CrPC” – for short) praying that the petitioner be allowed to compound<\/p>\n
the offence punishable under Section 420 Indian Penal Code (‘IPC’ – for short) for<\/p>\n
which he has been convicted by the learned Judicial Magistrate, Ist Class,<\/p>\n
Chandigarh vide order dated 13.11.2007 (Annexure P5). A further prayer is made for<\/p>\n
quashing the order dated 22.9.2008 (Annexure P1) passed by the learned Additional<\/p>\n
Sessions Judge, Chandigarh whereby the learned Court has declined the prayer of the<\/p>\n
petitioner and respondents No.2 and 3 for compounding the offence.<\/p>\n
            Case FIR No.55 dated 24.4.2005 was registered at Police Station<\/p>\n
Industrial Area, Chandigarh for the offences punishable under the provisions of the<\/p>\n
Punjab New Capital (Periphery) Control Act, 1952 (“Act” – for short) and Section<\/p>\n
420 IPC. The complainant SK Setia was posted as Land Acquisition Officer, U.T.,<\/p>\n
Chandigarh. He reported that Suresh Kumar, Kanungo had informed that Kulwant<\/p>\n
Singh (petitioner) had sold some land to one Sh. Ram Dass (Mochi) and Sh.\n<\/p>\n
 Crl. Misc. No. M- 28967 of 2008                                   [2]<\/p>\n
Jagat Ram (respondent No.2) with a false promise and inducement that they can<\/p>\n
construct a house for residential purposes. It was further alleged that the petitioner in<\/p>\n
fact gave possession of the forest land to Jagat Ram (respondent No.2) and Neelam<\/p>\n
Devi (respondent No.3) after taking money.          Besides, the petitioner had also<\/p>\n
constructed six godowns on agricultural land comprised in Rectangle No.9, Khasra<\/p>\n
Nos. 13\/2 and 14\/2 in Village Daria. The construction had been raised in violation of<\/p>\n
the provisions of Sections 5 and 6 of the Act. Besides, the constructed area was<\/p>\n
being misused for commercial purposes as the petitioner had given two godowns to<\/p>\n
Sh. Pawan Goel of M\/s Sadhu Ram & Co. Distributor and Wholesale Stockist, SCO<\/p>\n
No.41, Sector 7-C, Chandigarh. This change of use of agricultural land, it was<\/p>\n
alleged, was in violation of Section 11 and was punishable under Section 12(2) of the<\/p>\n
Act. On these allegations a request was made for registration of FIR for fraud and<\/p>\n
cheating as also for the offence punishable under Section 12 of the Act. FIR was<\/p>\n
registered and statements of witnesses recorded. After completion of investigation,<\/p>\n
challan was filed in Court.     On finding a prima facie case against the petitioner,<\/p>\n
following charges were framed against him by the learned Judicial Magistrate Ist<\/p>\n
Class, Chandigarh:-\n<\/p>\n
                                       “That prior to 24.4.2005 you above named<\/p>\n
                                 accused sold five marlas plot to Jagat Ram and<\/p>\n
                                 Neelam Devi       and thereby committed         offence<\/p>\n
                                 punishable under Section 12 of the Punjab New<\/p>\n
                                 Capital (Periphery) Control Act, 1952 and within my<\/p>\n
                                 cognizance.<\/p><\/blockquote>\n
<\/blockquote>\n
                                       Secondly, that on 27.2.1996 you above named<\/p>\n
                                 accused sold 5 marlas of land to Neelam Devi but by<\/p>\n
                                 dishonest inducement gave possession of five marlas<\/p>\n
                                 of land which included 4 marlas of land belonging to
\n Crl. Misc. No. M- 28967 of 2008                              [3]<\/p>\n
                             Forest Department which has to be vacated causing<\/p>\n
                             wrongful loss to said Neelam Devi and thereby<\/p>\n
                             committed an offence punishable under Section 420<\/p>\n
                             IPC and within my cognizance.\n<\/p><\/blockquote>\n
                                   Thirdly, on the same date you sold five marlas<\/p>\n
                             of land to Neelam Devi with false promise and<\/p>\n
                             inducement that they can construct a house for<\/p>\n
                             residential purpose thereon and further fraudulently<\/p>\n
                             and dishonestly misrepresented that land is free from<\/p>\n
                             all encumbrances whereas such land use conversion<\/p>\n
                             was not permissible under the Punjab New Capital<\/p>\n
                             (Periphery) Control Act, 1952 and thereby committed<\/p>\n
                             offence punishable under Section 420 IPC.<\/p>\n<\/blockquote>\n
                                   Fourthly, that on 22.10.1993 you above named<\/p>\n
                             accused sold 5 marlas of land to Jagat Ram but by<\/p>\n
                             dishonest inducement gave possession of five marlas<\/p>\n
                             of land which included 1\/2 marla land belonging to<\/p>\n
                             forest department which has to be vacated causing<\/p>\n
                             wrongful loss to said Jagat Ram and thereby<\/p>\n
                             committed an offence punishable under Section 420<\/p>\n
                             IPC and within my cognizance.<\/p><\/blockquote>\n
                                   Fifthly, on the same date you sold five marlas<\/p>\n
                             of land to Jagat Ram with false promise and<\/p>\n
                             inducement that they can construct a house for<\/p>\n
                             residential purpose thereon and further fraudulently<\/p>\n
                             and dishonestly misrepresented that land is free from<\/p>\n
                             all encumbrances whereas such land use conversion
\n Crl. Misc. No. M- 28967 of 2008                                [4]<\/p>\n
                               was not permissible under the Punjab New Capital<\/p>\n
                               (Periphery) Control Act, 1952 and thereby committed<\/p>\n
                               offence punishable under Section 420 IPC.\n<\/p>\n
                                      And I hereby direct that you be tried by this<\/p>\n
                               Court for the alleged offence committed by you.”\n<\/p>\n
            After framing the charges, prosecution in order to prove its case,<\/p>\n
examined Suresh Kumar (PW1), Ramesh Gill (PW2), Jagat Ram (PW3) (respondent<\/p>\n
No.2), Balraj Patwari (PW4), SK Setia (PW5), Joginder Singh (PW6), SI Yad Ram<\/p>\n
(PW-7), SI Ram Parkash (PW-8), Neelam Devi (PW-9) (respondent No.3), Inspector<\/p>\n
Moti Ram (PW-10), GS Saini (PW-11), Chandi Prasad (PW-12) and Inspector Ved<\/p>\n
Pal (PW-13). The statement of the petitioner in terms of Section 313 CrPC was<\/p>\n
recorded and the substance of the evidence appearing against him was put to him.<\/p>\n
            In defence, the petitioner examined Som Nath (DW-1) and Rajinder Pal<\/p>\n
Sharma (DW-2).\n<\/p>\n
            The learned Judicial Magistrate Ist Class, Chandigarh after considering<\/p>\n
the evidence and material on record, held that the prosecution had failed to prove the<\/p>\n
charge under Section 12 of the Act and acquitted the respondents of the said charge<\/p>\n
under Section 12 of the Act. Similarly no offence under Section 420 IPC was held to<\/p>\n
be made out insofar as the plots sold to Jagat Ram and Neelam Devi were sold on a<\/p>\n
false promise that these were free from all encumbrances and that residential<\/p>\n
construction was permissible thereon. However, it was held that the prosecution had<\/p>\n
succeeded in proving charge for the offence under Section 420 IPC regarding the<\/p>\n
fraud played by the petitioner with Jagat Ram (respondent No.2) and Neelam Devi<\/p>\n
(respondent No.3) by taking money for his own land but actually delivering to them<\/p>\n
possession of part of the forest land instead of his own land, which they had to later<\/p>\n
on surrender to the forest department. The petitioner was sentenced to undergo
\n Crl. Misc. No. M- 28967 of 2008                                  [5]<\/p>\n
rigorous imprisonment for a period of two years, besides, to pay a fine of Rs.5000\/-<\/p>\n
and in default of payment of fine, he was ordered to undergo further imprisonment<\/p>\n
for a period of 15 days. The petitioner aggrieved against the order to the extent that<\/p>\n
he had been convicted and sentenced, filed an appeal before the learned Sessions<\/p>\n
Judge, Chandigarh. In appeal, the petitioner filed an application seeking permission<\/p>\n
to compound the offence. The learned Additional Sessions Judge, Chandigarh vide<\/p>\n
order dated 22.9.2008 (Annexure P1) declined the said prayer. It was observed that<\/p>\n
in the present case, the allegations levelled against the petitioner were established<\/p>\n
that he had not only cheated Jagat Ram (respondent No.2) and Neelam Devi<\/p>\n
(respondent No.3) but also cheated the Forest Department, U.T. Chandigarh as well<\/p>\n
as the Union Territory, Chandigarh. Therefore, it was observed that in the absence of<\/p>\n
any application of the Land Acquisition Officer, U.T. Chandigarh, permission cannot<\/p>\n
be accorded to compound an offence on the application of Sh. Jagat Ram (respondent<\/p>\n
No.2) and Smt. Neelam Devi (respondent No.3). As such the application filed by the<\/p>\n
petitioner was dismissed. Aggrieved against the same, the petitioner has filed the<\/p>\n
present petition.\n<\/p>\n
             Mr. ADS Sukhija, Advocate learned counsel appearing for the petitioner<\/p>\n
has submitted that the petitioner has been convicted only for the offence for charges<\/p>\n
No.3 and 4 framed against him on the allegations that the petitioner sold five marlas<\/p>\n
of land to Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) and<\/p>\n
they wrongfully gave possession of forest land to the petitioner. It is submitted that<\/p>\n
the evidence and material on record shows that the possession of forest land was<\/p>\n
never given to the petitioner. A reference has been made to the deposition of S.K.<\/p>\n
Setia complainant (PW-5), wherein he has stated that the land of the Forest<\/p>\n
Department and the local land owners was demarcated in the presence of revenue<\/p>\n
officials and both were in their respective possessions. Therefore, it is submitted that<\/p>\n
the offence under Section 420 IPC being compoundable in terms of Section 320 (2)
\n Crl. Misc. No. M- 28967 of 2008                                 [6]<\/p>\n
CrPC     with the person cheated which in the present case would be Jagat Ram<\/p>\n
(respondent No.2) and Neelam Devi (respondent No.3), the petition is liable to be<\/p>\n
allowed.\n<\/p>\n
             Mr. Puneet Bassi, Advocate learned counsel appearing for U.T.<\/p>\n
Chandigarh submits that the order passed by the learned Additional Sessions Judge,<\/p>\n
Chandigarh is just and proper and the application seeking compounding the offence<\/p>\n
has rightly been dismissed.\n<\/p>\n
             Mr. Baljeet Singh, Advocate learned counsel appearing for respondents<\/p>\n
No.2 and 3 has submitted that the matter has been compromised between the parties<\/p>\n
and therefore, the application seeking the compounding of the offence is liable to be<\/p>\n
allowed in view of the provisions of Section 320 (2) CrPC.<\/p>\n
             I have given my thoughtful consideration to the matter and also perused<\/p>\n
the record of the case. The statement (Annexure P4) of S.K. Setia (PW-5) who was<\/p>\n
Land Acquisition Officer, UT, Chandigarh in the year 2005 has been placed on<\/p>\n
record. It is stated by S.K. Setia (PW-5) that he had made a complaint (Ex.PW5\/1) to<\/p>\n
Senior Superintendent of Police, UT, Chandgiarh against the petitioner requesting the<\/p>\n
latter   to register a FIR.   It is submitted that there were three elements of the<\/p>\n
complaint one of which was the wrong handing over of the forest land to the vendees<\/p>\n
which was testified by the Forest Department. It is also learnt that the complaint has<\/p>\n
been compared by the Department. However, the complaint regarding violation of<\/p>\n
Section 12 (2) of the Act was still persisting. Besides, the accused Kulwant Singh<\/p>\n
(petitioner) constructed six godowns of agricultural land in rectangle No.9, Khasra<\/p>\n
Nos13\/2 and 14\/2 in Village Daria. The construction had been raised without any<\/p>\n
permission under the provision of the Act for commercial gains. S.K. Setia (PW-5)<\/p>\n
had passed demolition order on 18.1.2002 (Ex.PW5\/3). In cross-examination, S.K.<\/p>\n
Setia (PW-5) accepts it as correct that the land of the Forest Department and the local<\/p>\n
land owners was demarcated in the presence of revenue officials and both were in
\n Crl. Misc. No. M- 28967 of 2008                                  [7]<\/p>\n
their respective possessions.\n<\/p>\n
              In the face of the said deposition of the complainant SK Setia (PW-5),<\/p>\n
the learned counsel for U.T. Administration has not been able to dispute the fact that<\/p>\n
the forest land has not been encroached upon or that possession of the forest land is<\/p>\n
with respondents No.2 and 3. The cross-examination of the complainant S.P. Setia<\/p>\n
(PW-5) as already noticed indeed shows that it is accepted by him as correct that the<\/p>\n
land of Forest Department and local land owners was demarcated in the presence of<\/p>\n
the revenue officials and both were in their respective possession.         Therefore,<\/p>\n
evidently it is not a case where the forest land has been proved to be transferred or<\/p>\n
that possession was given in pursuance of the sale deed executed by the petitioner in<\/p>\n
respect of his land in favour of respondents No.2 and 3. In fact even the charge that<\/p>\n
has been framed against the petitioner is that the petitioner had sold five marlas of<\/p>\n
land to Neelam Devi (respondent No.3) but by dishonest inducement gave possession<\/p>\n
of five marlas of land which included four marlas of land belonging to Forest<\/p>\n
Department which had to be vacated causing wrongful loss to Neelam Devi<\/p>\n
(respondent No.3). Besides, the petitioner sold five marlas of land to Jagat Ram<\/p>\n
(respondent No.2) but by dishonest inducement gave possession of five marlas of<\/p>\n
land which included half marlas of land belonging to Forest Department which had<\/p>\n
to be vacated causing wrongful loss to Jagat Ram.         Therefore, evidently the loss<\/p>\n
regarding transfer of land for which the petitioner had been charged is attributed to<\/p>\n
respondents No.2 and 3. They have admittedly compounded the offence with the<\/p>\n
petitioner.   Besides, during demarcation proceedings, the forest land has been<\/p>\n
demarcated and both the Forest Department and the purchasers and other land owners<\/p>\n
are in possession of the land according to their entitlement.<\/p>\n
              In the circumstances, there is no reason as to why the application for<\/p>\n
compounding the offences in terms of Section 320 (2) CrPC be not allowed,
\n Crl. Misc. No. M- 28967 of 2008                                   [8]<\/p>\n
especially when the persons aggrieved i.e. respondents No.2 and 3 have no grievance.<\/p>\n
In terms of sub-Section (2) of Section 320 CrPC, the offences punishable under the<\/p>\n
Sections of the IPC specified in the first two columns of the table next following<\/p>\n
may, with the permission of the Court before which any prosecution for such offence<\/p>\n
is pending, be compounded by person mentioned in the third column of that table.<\/p>\n
Section 420 IPC relating to the offence of cheating can be compounded with the<\/p>\n
permission of the Court with the person who has been cheated. As already noticed,<\/p>\n
respondents No.2 and 3 who are stated to have been cheated and for which the<\/p>\n
petitioner was charged have compounded the offence.             The petitioner has been<\/p>\n
acquitted of the other offences under the Act. Therefore, there is no reason as to why<\/p>\n
he should not be allowed to compound the offence under Section 420 IPC for which<\/p>\n
necessary permission is also granted.\n<\/p>\n
             Accordingly, the Crl. Misc. petition is allowed and the order dated<\/p>\n
22.9.08 (Annexure P1) passed by the learned Additional Sessions Judge, Chandigarh<\/p>\n
is set aside and the application seeking compounding the offence is allowed. The<\/p>\n
petitioner shall accordingly stand acquitted of the charge under Section 420 IPC as<\/p>\n
well relating to the fraud played by the petitioner with Jagat Ram (respondent No.2)<\/p>\n
and Neelam Devi (respondent No.3) by taking money from his own land but actually<\/p>\n
delivering to them the possession of part of the forest land.<\/p>\n
                                                          (S.S. SARON)
\n                                                             JUDGE
\nJanuary 14, 2009
\namit\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Kulwant Singh vs State (U.T. Chandigarh) And … on 14 January, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-138369","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nKulwant Singh vs State (U.T. 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