Punjab-Haryana High Court
Gurmail Singh vs State Of Punjab And Anr on 27 April, 2023
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(244) IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-2780-2018 (O&M)
Date of Decision: 27.04.2023
GURMAIL SINGH
... Petitioner
Versus
STATE OF PUNJAB & ANOTHER
...Respondents
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Tarun Sharma, Advocate
for the petitioner.
Ms. Ramta K. Chaudhary, DAG, Punjab.
****
JASJIT SINGH BEDI, J.
The present revision petition has been filed against the judgment
dated 20.01.2018 passed by the Additional Sessions Judge, Fatehgarh Sahib
whereby the appeal filed against the judgment of acquittal dated 13.02.2014
passed by the Judicial Magistrate, 1st Class, Fatehgarh Sahib, has been
upheld.
2. Briefly, the facts of prosecution case are that on 23.08.2007 an
application was moved by the complainant/petitioner-Gurmail Singh
(hereinafter known as the complainant) to the SSP Fatehgarh Sahib for
registration of a case against the accused persons. The complainant stated
that the accused Lal Dass and Mewa Dass had entered into an agreement to
sell through one property dealer Dhanwant Singh s/o Vijay Singh resident of
village Bakarpur District Mohali. They had received an amount of Rs.6 lac as
earnest money in the Tehsil complex Fatehgarh Sahib. All the conditions
were incorporated in the agreement to sell. After inquiry the complainant had
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come to know that the property which was sold was not the personal property
of any person but under the ownership of Thakur Dwara and which could not
be sold to anyone nor it could be leased out for a period of 99 days. However,
the accused and his son in collusion with the property dealer had entered into
the agreement and had received the earnest money. As per the agreement the
date of execution was 23.06.2006 and he being the purchaser had kept on
waiting on 23.06.2006 in the Tehsil Complex Fatehgarh Sahib but both the
accused did not turn up. On 24-25 June, 2006 the Tehsil was closed due to
holidays. On 26.06.2006, he again had kept on waiting but the accused did
not turn up. When he (complainant) had called the accused, he was called to
their (accused's) house for returning the amount but when the complainant
reached the home the accused were not there. On 29.08.2006 the complainant
had told the whole story to Harinder Singh Harji who was the Ex-Sarpanch of
the village. On 14.10.2006 they were again called and a compromise was
entered through the Panchayat that the accused would prepare a pro-note and
Rs.6 lac was to be paid as per the compromise through two half yearly
installments. The accused had assured to pay back the amount. As per this
compromise on 30.10.2006 Jathedar Harinder Singh Harji had paid the
amount of Rs.30,000/- to the complainant and they were again called on
31.05.2007 for returning the amount but because of some domestic problem
he (complainant) could not go on 14.06.2007 to village Reona Niwan. On
this accused Lal Dass sent back the complainant on the pretext that his son
had gone out and they would again contact him on 18.06.2007. He
(complainant) had adhered to the compromise of the Panchayat but on
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18.06.2007 the accused had flatly refused to pay back the amount. The
original agreement to sell was lying in the custody of Jathedar Harinder
Singh Harji. Thereafter, he (complainant) had decided to move a complaint.
When he (complainant) reached Police Station Fatehgarh Sahib the officials
told him that he should first move the complaint at Police Station Mulepur.
After that he (complainant) contacted Sh. Suresh Kumar at Police Station
Mulepur who forwarded the complaint to ASI Harjit Singh and told him
(complainant) to come back on the next day at 10 am. On the next day the
son of the accused Mewa Dass had appeared at the police station. He was in a
drunken condition and had refused to pay back the amount and also backed
out from the agreement to sell. Hence he (complainant) prayed for return of
the amount which he had paid under the agreement to sell.
The application was forwarded for investigation to the Economic
Offence Wing, Fatehgarh Sahib. From the investigation it was revealed that
the accused had known that the land was of Thakur Dwara and it could not be
sold nor it could be registered but knowingly the accused had entered into the
agreement to sell in connivance with each other and had received an amount
of Rs.6 lacs from the complainant. Hence, he wanted legal action against the
accused. Thereafter, the FIR came to be registered and investigation was
carried out.
3. On finding a prima facie case, the accused were charge sheeted
under Sections 420,120-B, 201 of IPC. On recording of the plea, the accused
did not plead guilty and claimed trial.
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4. In support of its case, the prosecution examined the following
witnesses:-
Name of witness Serial number of witness
Gurmail Singh (complainant) PW1
Harminder Singh @ Hari PW2
Bharpoor Singh PW3
Narinder Singh Sandhu Patwari PW4
Mani Singh (attesting witness) PW5
Gurinder Kaur from SDM Office, FGS PW6
Daljit Singh Rana, Sp. City PW-7
SI Harnek Singh IO PW8
On the basis of the testimonies of the above named witnesses,
the prosecution proved on record the following documents:-
Description of Document Serial No. of Exhibit
Application of Gurmail Singh Ex.PW1/A
moved before SSP Fatehgarh
Sahib
Agreement to sell Ex.PW1/B
Affidavit Ex.PW1/C
Jamabandi Ex.PW3/A
Investigation report Ex.PW7/A
Cash Receipt of RPO Chandigarh Ex.PW4/A
Record regarding issuance of Ex.PW4/B
passport
FIR Ex.PW8/E
Arrest memo and personal search Ex.PW8/A to Ex.PW8/D
memo
Thereafter, the APP for the State closed the prosecution evidence
vide separate statement dated 20.11.2013.
5. The statements of the accused were recorded under Section 313
Cr.P.C. wherein they denied all the allegations levelled against them and also
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pleaded false implication. They stated they had never entered into any
agreement to sell and the said agreement was a forged one. No defence
evidence was led by the accused despite opportunity.
6. Based on the evidence led, the accused were acquitted by the
Court of the Judicial Magistrate, 1st Class, Fatehgarh Sahib vide judgment
dated 13.02.2014.
7. The State of Punjab filed an appeal bearing Nos.CRL. Appeal
No.58 of 05.05.2014/19.08.2014. The complainant-Gurmail Singh also filed
an appeal bearing No.CRL. Appeal No.38 of 2014. During the pendency of
the appeal, Lal Dass (accused No.1) passed away because of which
proceedings abated qua him. However, the Court of Additional Sessions
Judge, Fatehgarh Sahib vide judgment dated 20.01.2018 dismissed both the
appeals of the State and the complainant.
8. The aforementioned judgments are under challenge in the
present case.
9. The learned counsel for the petitioner contends that the offence
against respondent No.2-Mewa Dass @ Gorakh Dass son of Lal Dass and his
deceased father Lal Dass stood established beyond any reasonable doubt.
Merely because a suit for specific performance had not been filed would not
be a ground to acquit the accused. In fact, a suit for recovery had been filed
by the complainant and the said suit was decreed vide judgment dated
15.02.2016 and the petitioner/complainant was held to be entitled to the
recovery of Rs.6 lakhs along with interest. Therefore, in view of the findings
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of the Civil Court, the accused/respondent No.2 ought to have been held
guilty.
10. The learned State counsel has supported the case of the
petitioner/complainant and contends that the offence was well-established
and therefore, respondent No.2 ought to be convicted for having committed
the offence in question.
11. I have heard the learned counsel for the parties.
12. It is the case of the complainant/petitioner that he had been
cheated by Lal Dass (deceased) and respondent No.2-Mewa Dass on the basis
of an agreement to sell dated 25.05.2006 for the sale of land measuring 34
kanals 15 marlas. In fact, the accused could not have sold the land in question
as it belonged to a Trust. It may be pointed out that as per record, the property
was in the ownership of Thakur Dwara of which Lal Dass (since deceased)
accused was the Mahant and shown to be in possession of the property. On
the date when the agreement to sell was entered into Lal Dass, Mehant was
having the capacity to enter into an agreement to sell. Therefore, the requisite
mens rea which is required to be seen at the time of the execution of the
agreement to sell is missing in the instant case. Thus, it cannot be establish
beyond doubt that the accused had fraudulent or dishonest intention at the
very inception.
Further, a perusal of the cross-examination of the complainant
would reveal that he was aware even at the time of the execution of the
agreement to sell that the property in question belong to the Thakur Dwara. It
is the case of the complainant that he had been cheated because the accused
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Lal Dass being a Mahant could not have transferred the title of the property.
If that be so, then the complainant was well-aware of the fact that the
property belong to the Thakur Dwara and therefore, he should not have
entered into agreement to sell in the first place.
Even otherwise, the complainant does not appear to be a
trustworthy witness. As per his case, the agreement was entered into in the
presence of witnesses Bharpur Singh and Mani Singh and the agreement
along with an affidavit was thereafter handed over to Jathedar Harjinder
Singh Harji being Sarpanch of the Village. Subsequently, the agreement was
handed over to Lal Dass accused (since deceased). However, in cross-
examination the complainant stated that the original agreement was handed
over to Harjinder Singh Harji in whose presence the compromise was
effected. PW5-Mani Singh has stated that the agreement to sell was a hand
written document whereas it was a typed document.
Undoubtedly, Lal Dass had died during the pendency of the
appeal. As far as respondent No.2/accused Mewa Dass is concerned, there is
no evidence available against him that he had induced the complainant to part
with the consideration of Rs.6 lakhs. In fact, the case of the complainant
itself is that respondent No.2-Mewa Dass was a signatory to the agreement.
Merely being a signatory to the agreement to sell would not establish that
Mewa Dass was an accomplice of his deceased father Lal Dass in the alleged
fraud by him (Lal Dass).
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There are also multiple discrepancies regarding who was in
possession of the agreement to sell. The complainant on the one hand states
that the original agreement to sell was destroyed by the accused whereas on
the other hand, it is case his that the agreement along with an affidavit was
handed over to Jathedar Harjinder Singh Harji, Sarpanch of the village.
Interestingly, PW2-Harjinder Singh Harji has not corroborated the version of
the complainant on material particulars. He has stated that no compromise
had been entered into between the parties nor was any pro-note written or any
agreement to sell destroyed.
13. Keeping in view the aforementioned discussion, I find no reason
to interfere with the well-reasoned judgments of the Trial Court and the
Lower Appellate Court. Hence this revision petition is dismissed.
(JASJIT SINGH BEDI)
JUDGE
27.04.2023
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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