CRM-A-1920-MA-2014 (O&M) -1-
CRR-264-2010 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
1. CRM-A-1920-MA-2014 (O&M)
Reserved on: 14.11.2022
Date of Decision: 18.11.2022
Manish Gupta ......Applicant
Versus
State of Haryana and another ......Respondent
2. Criminal Revision No. 264 of 2019(O&M)
Harpal Singh ......Petitioner
Versus
State of Haryana and another ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Diwan S. Adlakha, Advocate
for the applicant (in CRM-A-1920-MA-2014) and
for the complainant (in CRR-264-2019).
Mr. Namit Khurana, Advocate
for the petitioner (in CRR-264-2019) and
for respondent No. 2 (in CRM-A-1920-MA-2014).
Mr. Anmol Malik, DAG, Haryana.
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SURESHWAR THAKUR, J.
CRM-39019-2014 IN CRM-A-1920-MA-2014
1. Since the institution of the instant application seeking leave to appeal, before this Court, at the instance of the complainant, against the verdict of acquittal, as made by the learned trial Court concerned, on 14.7.2014, upon 1 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -2-
CRR-264-2010 (O&M) complaint bearing No. 170 of 2006, is barred by a delay of about 82 days. However, when the said period of delay has been sufficiently explained. Therefore, the delay of 82 days, in filing the instant application seeking leave to appeal, is condoned.
2. The application stands disposed of.
CRM-A-1920-MA-2014
1. The complainant one Manish Gupta instituted a complaint bearing No. 170 of 2006 in the Court of the learned Sub Divisional Judicial Magistrate, Bilaspur. Thereins, he arrayed one Harpal Singh as an accused. He alleged that the accused had committed offences, constituted under Sections 420, 467, 468, 471, and, under Section 506 of the IPC.
2. The learned trial Judge concerned, through a decision, as made thereons on 14.7.2014, proceeded to record a verdict of acquittal in respect of offences constituted under Sections 467, 468, 471, 406 of the IPC but made a verdict of conviction in respect of an offence punishable under Section 420 of the IPC. Moreover, through a separate sentencing order, drawn on 14.7.2014, the learned trial Judge concerned, imposed upon the convict, the sentence of rigorous imprisonment extending upto a term of two years for commission of an offence punishable under Section 420 of the IPC, and, also imposed upon the convict the sentence of fine, comprised in a sum of Rs. 5,000/-. Moreover, in default of payment of fine amount, he sentenced the convict to undergo rigorous imprisonment for a period of two months.
3. The above verdict of conviction, and, consequent therewith sentence(s) (supra), became challenged by the aggrieved convict, before the learned Appellate Court concerned. The learned Appellate Court concerned, through a decision made on 11.1.2019, upon Criminal Appeal No. 212 of 2 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -3-
CRR-264-2010 (O&M) 2014, rather dismissed the above appeal. Resultantly, the verdict of conviction, and, consequent therewith sentence(s) (supra), as became respectively made, and, imposed upon the convict rather became affirmed, and, maintained by the learned Appellate Court concerned.
4. The convict becomes aggrieved from the concurrent verdicts of conviction, and, also from the concurrently imposed sentence(s), upon him, and, hence has chosen to institute thereagainst Criminal Revision No. 264 of 2019, before this Court. Moreover, the complainant is also aggrieved from the concurrently made verdicts of acquittal, as made by both the learned Courts below, in respect of offences constituted under Sections 467, 468, 471 and under Section 406 of the IPC, and, hence has chosen to institute thereagainst CRM-A-1920-MA of 2014, before this Court.
5. Since both the Criminal Revision No. 264 of 2019, and, CRM- A-1920-MA of 2014, arise from a common thereto verdicts, thus, they are amenable for a common decision being made thereons. Reasons for affirming the verdict of acquittal as made by the learned Courts below qua offences constituted under Sections 467, 468, 471 and under Section 406 of the IPC
6. The genesis of the complaint, is embodied in an agreement to sell, purportedly executed amongst the complainant and the accused. The said agreement to sell is comprised in Ex. C1. The land enumerated thereins, is reflected to be contracted to be sold by the accused to the complainant for a sale consideration of Rs. 3,25,000/-. From the amongst the contractually agreed sale consideration, as made in respect of land measuring 12 kanals 16 marlas, a sum of Rs. 2,50,000/-, is recited in Ex. C1 to be paid at the phase of drawings thereof, hence as earnest money to the accused, by the complainant.
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CRM-A-1920-MA-2014 (O&M) -4-
CRR-264-2010 (O&M)
The date for execution of the registered deed of conveyance, in respect of the land, as disclosed in Ex. C1, is mentioned thereins to be 30.7.2005. Moreover, it is also stipulated thereins, that in case there is any default on the part of the vendor to execute the registered deed of conveyance on 30.7.2005, thereupon, the vendee would be entitled to deposit the outstanding sale consideration in the Court, besides would become entitled to claim refund of double the amount of the earnest money hence from the accused. Moreover, it is also mentioned thereins, that after deposit of the outstanding sale consideration by the complainant, in the Civil Court concerned, he shall become entitled to obtain a decree of specific performance of Ex. C1. Contrarily, in the event of the vendee not showing his readiness, and, willingness to comply with his part of the contractual obligations rather on 30.7.2005, thereupon, the vendor would become entitled to forfeit the earnest money.
7. Though, the accused denied his validly drawing of Ex. C1, and, also denied his making the apposite receipt thereons, in respect of his receiving the earnest money, as comprised in a sum of Rs. 2,50,000/-, from the complainant, imperatively at the time of the drawing of Ex. C1. Nonetheless, the complainant did, hence for belying the said denial, adduce evidence, comprised in the testifications of the deed writer (CW-3), Patwari (CW-4), and, Clerk (CW-5).
8. If so, it was then open to the accused to, with the leave of Court ask for adduction of best evidence. The said best evidence was comprised in the report of the hand writing expert concerned. However, the accused failed to adduce the above best evidence. Resultantly, prima facie the bare denial by the accused, qua his validly executing Ex. C1 with the complainant, does 4 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -5-
CRR-264-2010 (O&M) appear to be false. Be that as it may, as above stated, the last date for the execution of the registered deed of conveyance by the parties, who executed Ex. C1, is mentioned thereins, to be 30.7.2005. The complainant was to adduce evidence in respect of his readiness, and, willingness to execute with the accused the registered deed of conveyance in respect of the land, as mentioned in Ex. C1. However, in the above regard, the complainant tendered an affidavit, sworn before the Executive Magistrate, Sadhaura, to which Ex. C3 is assigned, whereins there is a recital qua his making his presence before the Sub Registrar concerned, for the relevant purpose on 1.8.2005.
9. Though, the complainant alleges that on the said date, the accused did not cause his appearance, but the non-appearance on the said date of the accused, cannot be said to be intentional, nor can be concluded to be ridden with any vice of malafides, as there is no evidence on record rather suggestive, that despite any prior thereto intimation being provenly served, for the relevant purpose, upon the accused, the latter not making his appearance before the Sub Registrar concerned. Therefore, it cannot be said that there was lack of willingness on the part of the accused to perform his part of the contractual obligation, as set-forth in Ex. C1.
10. The allegations of forgery, as made by the complainant, against the accused, become comprised in the factum, that the accused had uncontrovertedly obtained loan, as comprised in a sum of Rs. 1,90,000/- from the Punjab National Bank, Sadhaura, with respect to the land mentioned in Ex. C1. The said fact is alleged to remain unintimated to the complainant, by the accused at the time of execution of Ex. C1 amongst them. The complainant alleges, that he became awakened of the above fact post 5 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -6-
CRR-264-2010 (O&M) 30.7.2005. However, the above contention is belied on a perusal of Ex. C5, exhibit whereof is a notice issued by the complainant to the accused, for the latter, hence in pursuance to the drawings amongst them of Ex. C1, executing with him a registered deed of conveyance, as rather thereins the above factum remained unmentioned. Moreover, what further gives impetus to the above inference, becomes marshalled from the factum, that even after Ex. C5, becoming issued in September 2005, the complainant did not institute any suit for specific performance against the accused, despite the latter denying in his reply thereto, and, as becomes comprised in Ex. C6, qua his executing Ex. C1, with the complainant. The lack of existence of the above factum in Ex. C5, and, it being only mentioned in the complaint, instituted on 26.5.2006, does coax this Court to conclude, that earlier thereto also, the above fact was known to the complainant. If so, it appears, that the complainant overlooked the said factum. Moreover, it does not appeal to reason, that without the complainant asking for the relevant authentic revenue record, from the accused, he proceeded to execute Ex. C1 with the latter.
11. In any case, the complainant has alleged, that the above factum of land, mentioned in Ex. C1, being mortgaged, remained unintimated to him, and, that in the revenue record, as purportedly purveyed to him, by the accused, there was an intentional non-recital of the land, mentioned in Ex. C1, being mortgaged to the Punjab National Bank, Sadhaura. The above non mentioning in the jamabandis, appertaining to the land, as mentioned in Ex. C1, is alleged to be a sequel of the accused, in connivance with the Patwari concerned, rather intentionally causing unlawful non-occurrence thereins of the said relevant fact. Therefore, it was but incumbent, upon the complainant to also array the Patwari concerned, as an accused. However, he did not do 6 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -7-
CRR-264-2010 (O&M) so, whereas his impleadment, as an accused was both just, and, essential to ensure that evidence emerges, that the Halqa Patwari along with the accused rather had doctored the relevant jamabandi(s). In consequence, the findings, as made by both the learned Courts below, in respect of the offences, constituted under Sections 467, 468, 471, 406 of the IPC, do not warrant any interference.
12. The other reason which constrains this Court to affirm the verdicts of acquittal, as made in respect of the offences, constituted under Sections 467, 468, 471, 406 of the IPC, is grounded in the factum, that in the agreement to sell, in the event of the vendor failing to perform his part of the contractual obligations, two options being given to the vendee. The initial option is of his securing a decree of specific performance from the Civil Court concerned, qua Ex. C1. The second option is qua his asking for refund of the double of the amount of the earnest money from the accused. In case, there was any false narration in the jamabandis, thereupon, if the vendee chose not to purchase the encumbered land of the vendor, but yet he could well opt for exercising the option of his through the Civil Court concerned, asking for refund of the double of the amount of the earnest money, as an alternative to his asking for a decree of specific performance, being granted in his favour. Thus, and, if so given the availability of the above options to the complainant, thereupon, even if there was any purported forgery in Ex. C1, but yet made the dispute to be a purely civil dispute. Moreover, the remedy for mitigating the grievance of the complainant was through his accessing only the Civil Court concerned, and, his not galvanizing the criminal machinery, which but is an abuse of the process of law.
13. The paramount reason for dismissing CRM-A-1920-MA-2014, 7 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -8-
CRR-264-2010 (O&M) as reared before this Court, by the complainant against the verdict of acquittal, as made by both the learned Courts below, in respect of the offences, constituted under Sections 467, 468, 471, 406 of the IPC, is comprised in the factum, that though, the learned trial Judge concerned, had also made a verdict of acquittal, in respect of the offences (supra) but the said verdict never became appealed by the complainant, before the learned Appellate Court. Therefore, in the absence of the complainant not rearing any appeal against the verdict of acquittal, as made upon the accused by the learned convicting Court, in respect of the offences (supra), does estop, the complainant to now, before this Court, challenge the verdict of acquittal, as became pronounced by the learned trial Court concerned, on complaint bearing No. 170 of 2006.
Reasons for allowing Criminal Revision petition, as preferred by the convict against the concurrently made verdicts of conviction against him in respect of an offence under Section 420 of the IPC
14. The primary reason, as made conjointly by both the learned Courts below to record a finding of conviction, against the revisionist, in respect of an offence punishable under Section 420 of the IPC, is comprised in the factum, of the revisionist-convict hiding from the complainant, qua his mortgaging the land, as comprised in Ex. C1. Since this Court for reasons (supra), has concluded that the offences constituted under Sections 467, 468, 471, 406 of the IPC, are not made out, therefore, the above reason assigned by both the Courts below to conclude, that yet on the above premise, the revisionist committing an offence punishable under Section 420 of the IPC rather becomes completely misfounded.
15. Even otherwise, the receipt of part of the sale consideration, by 8 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -9-
CRR-264-2010 (O&M) the accused, from the complainant at the time of both purportedly drawing Ex. C1, did also cast upon them, the obligation to, on or before 30.7.2005, execute a registered deed of conveyance before the Sub Registrar concerned. As above stated, on failure of the accused not complying with the said contractual condition, the complainant was bestowed with a leverage to deposit the remaining sale consideration, before the learned Civil Court concerned, and, also became conferred with a further privilege qua his through an apposite decree being granted qua him, his hence enforcing the same against the accused. Moreover, as an alternative thereto, on the above failure of the accused, the complainant was bestowed with a privilege to then seek refund of double of the earnest money from the accused. Though, as above stated, the complainant did appear before the Sub Registrar concerned on 1.8.2005, however, there is no evidence that an intimation in respect of the above fact was earlier thereto conveyed to the accused. Therefore, it cannot be said that there was any complete failure on the part of the accused to cause his appearance on the relevant day, and, for the relevant purpose, before the Sub Registrar concerned.
16. Though, Ex. C5, which encloses a legal notice, did become served, upon the accused, whereins a request was made to him, to execute a registered deed of conveyance with the complainant but in reply thereto, as enclosed in Ex. C6, the accused denied his executing Ex. C1 with the complainant. Though, the said denial is prima facie false but yet when it did emanate on the part of the accused, resultantly, it was open to the complainant to seek refund of double of the earnest money, as paid by him, to the accused, or to institute a suit for specific performance, before the Civil Court concerned. However, the complainant chose to institute the instant 9 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -10-
CRR-264-2010 (O&M) complaint against the accused, which is a completely miscoursed remedy, as thereins becomes encapsulated a pure civil dispute. The said civil suit, as evident on a bare reading of Ex. C1, was the remedy contemplated to the contracting parties, and, it was not required to be foregone nor was required to be abandoned. The abandonment of the above remedy by the complainant, despite it constituting the best enforceable remedy to ensure the enforcement of Ex. C1, does constrain this Court to conclude, that the launching of criminal proceedings, in respect of a pure civil dispute is nothing but a clever stratagem to overawe accused, besides is a complete abuse of process of law.
Principles of Law (1) The remedy for enforcing the contract of sale is through the aggrieved concerned, instituting a declaratory suit, before the Civil Court concerned.
(2) The aggrieved can also launch criminal proceedings but only when the vendor concerned, has entered into a contract of sale with the vendee concerned, despite his evidently earlier thereto making a contract of sale with some other person.
(3) Moreover, though criminal proceedings were also available to be launched at the instance of the aggrieved concerned, but yet only when the vendor concerned, evidently impersonates the identity of the true owner. However, when the true owner, does evidently, sign the contract of sale with the vendee concerned, but the property mentioned in the contract of sale, is under an encumbrance, yet then may be the criminal proceedings 10 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -11-
CRR-264-2010 (O&M) may not be launchable against the accused, but if at the time of the execution of registered deed of conveyance, the contracted property is free from all encumberances, and/or when in the contract of sale, remedy qua refund of the earnest money, as an alternate to the remedy of specific performance of the contract of sale, rather became preserved to the vendee.
Final order
17. Consequently, for the reasons assigned hereinabove, this Court finds no reason to interfere with the impugned verdict of acquittal, as made by the learned trial Court concerned, in respect of the offences, constituted under Sections 467, 468, 471, 406 of the IPC. Thus, leave to appeal against the verdict of acquittal, as made by the learned trial Court concerned, is declined, thus, the application, seeking leave to appeal bearing No. CRM-A- 1920-MA-2014, is hereby dismissed. The impugned verdict of acquittal, as made by the learned trial Court, is maintained, and, affirmed.
18. However, the revision petition, filed by the convict-revisionist, bearing No. CRR-264-2019, is allowed. Consequently, the impugned judgments convicting, and, sentencing the petitioner for an offence punishable under Section 420 of the IPC, and, as recorded by both the learned Courts below, are quashed, and, set aside. Petitioner Harpal Singh is acquitted of the charge (supra) framed against him. The personal, and, surety bonds of the accused (supra) shall stand forthwith cancelled, and, discharged. The fine amount, if any, deposited by the petitioner, be, in accordance with law, refunded to him. The case property, if any, be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an 11 of 12 ::: Downloaded on - 19-11-2022 11:57:31 ::: CRM-A-1920-MA-2014 (O&M) -12-
CRR-264-2010 (O&M) appeal.
19. Records be sent down forthwith.
(SURESHWAR THAKUR) JUDGE (KULDEEP TIWARI) JUDGE November 18th, 2022 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 12 of 12 ::: Downloaded on - 19-11-2022 11:57:31 :::