Punjab-Haryana High Court
Gurdip Singh vs Satnam Singh on 14 March, 2024
Neutral Citation No:=2024:PHHC:040277
CRR-2922-2018(O&M)&
CRR-3050-2018(O&M) -1- 2024:PHHC:040277
242 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1) CRR-2922-2018(O&M)
Date of decision: 14.03.2024
Gurdip Singh ....Petitioner
Versus
Satnam Singh ...Respondent
2) CRR-3050-2018(O&M)
Gurdip Singh ....Petitioner
Versus
Gurmukh Singh and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Vipin Mahajan, Advocate
for the petitioner(s)
HARPREET SINGH BRAR, J.
CRM-30802-2018 in CRR-2922-2018
This is an application under Section 5 of the Limitation Act, 1963
seeking condonation of a delay of 17 days in filing the instant revision petition.
For the reasons mentioned in the application, the same is allowed
and the delay of 17 days in filing the revision petition, is condoned.
CRM-31856-2018 in CRR-3050-2018
This is an application under Section 5 of the Limitation Act, 1963
seeking condonation of a delay of 28 days in filing the instant revision petition.
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For the reasons mentioned in the application, the same is allowed
and the delay of 28 days in filing the revision petition, is condoned.
CRR-2922-2018 and CRR-3050-2018
1. This common order shall dispose of both the above mentioned
cases as they arise from identical factual matrix. However, for the sake of
brevity, the facts are taken from CRR-2922-2018.
2. The present revision is preferred against judgment dated
27.04.2018 passed by learned Additional Sessions Judge, Gurdaspur vide which
the judgment of conviction dated 05.03.2015 passed by learned Judicial
Magistrate Ist Class, Batala in criminal complaint no. 46 dated 14.03.2009 filed
under Sections 420, 467, 468, 471, 120-B of the IPC, was set aside and the
respondents-accused were acquitted of charges framed against them.
3. The facts, in brief, are that respondent-Gurkmukh Singh and the
petitioner were in joint possession out of joint khata of land measuring 21
kanals 1 marla bearing khasra no. 41R/8(1-12), 18/2(3-9), 23/1(6-0), 17(8-0)
situated at village Harchowal, Tehsil Batala. In furtherance of his conspiracy to
grab the entire land for himself, Gurmukh Singh executed a false mortgage deed
dated 01.06.2000 in favour of his son respondent-Navtej Singh qua 12 kanals of
land for a term of 19 years. The mutation to this effect was sanctioned however,
the khasra girdawari remained in the name of the petitioner-complainant and
Gurmukh Singh till Rabbi, 2024, since the Halqa Patwari had no authority to
make entries regarding change in possession. Respondents-Gurmukh Singh,
Navtej Singh, in connivance with Halqa Patwari respondent-Satanism Singh,
got the entries reflecting name of Navtej Singh in column of cultivation qua
khasra no. 41R/18/2/1(3-0) and khasra no. 41R/8(1-12), 41R/23/1(2-0) and
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41R/23/2(6-0), without any orders from a revenue court or a civil court. The
petitioner-complainant found out about the said changes in the jamabandi when
Gurmukh Singh filed a civil suit qua the joint land.
4. The prosecution examined 3 witnesses in pre-charge stage,
following which the respondents-accused were summoned to face charges
under Sections 420,467,468,471,120-B of the IPC. All the incriminating
material was put to the accused and their respective statements under Section
313 Cr.P.C. were recorded wherein they pleaded innocence and examined 1
witness in their defence. On assessing all the material available on record, the
learned trial Court convicted the respondents-accused vide judgment dated
05.03.2015 and sentenced them to rigorous imprisonment of 1 year 6 months.
Aggrieved by the same, the respondents preferred an appeal before the learned
lower Appellate Court which was allowed vide judgment dated 27.04.2018 and
the respondents-accused were acquitted of the charges framed against them.
5. Learned counsel for the petitioner assails the impugned judgment
on the ground that the learned lower Appellate Court has erred in ignoring Rule
9.9 of Punjab Land Record Manual which requires the Patwari to obtain
signatures of all interested parties in the roznamcha, when specific orders to that
effect have been passed by a competent authority for an alteration in the khasra
girdawari. CW3-Lakhwinder Singh, Girdawar Halqa has categorically admitted
on re-examination that no order from any competent authority were received for
making the disputed change in the girdawari. As such, the act of changing the
entries in the Girdawari in favour of respondent-Navtej Singh amounts to
forgery, especially when execution of the mortgage deed dated 27.04.2018 has
been specifically denied by the petitioner-complainant. Furthermore, Gurmukh
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Singh has also failed to prove that he was in exclusive possession of the
disputed land, which would allow him to mortgage it.
6. Learned counsel further contends that the order sanctioning the
mutation was passed in an arbitrary manner without going into the merits of the
case and considering that Gurmukh Singh has been retained as a co-sharer and
mortagagee and the remaining ½ share was to remain badastoor i.e. per
previous record, a perusal of which would reflect the petitioner as a co-sharer in
the disputed khara. Finally, the civil suit instituted by Gurmukh Singh for
declaration and permanent injunction qua the disputed land has been dismissed
by the learned trial Court vide judgment and decree dated 31.01.2014.
7. Having heard the learned counsel for the parties and after perusing
the record with their able assistance, it transpires that the petitioner and
respondent-Gurmukh Singh are real brothers. Admittedly, a registered mortgage
deed dated 01.06.2000 with regard to a specific portion, measuring 12 kanals 0
marlas, out of the joint land was executed by Gurmukh Singh in favour of his
son Navtej Singh. The mutation to this effect was sanctioned by Assistant
Collector Ist Grade, Batala and duly incorporated in the 'remarks' column of the
jamabandi. It is trite law that if a specific portion is alienated out of the joint
property, the alienation shall be considered qua the share and not the specific
portion. Therefore, the sanctity of the mortgage deed dated 01.06.2000 remains
untainted and the same cannot be considered to be an illegal document.
8. Further, there is nothing on record to indicate any dishonest
intention on the part of the respondents-accused qua entry of Navtej Singh's
name in the cultivation column. Respondent-Satnam Singh, Halqa Patwari, had
made entries regarding mutation in the remarks column in the jamabandi for the
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year 1998-99 and the subsequent jamabandi for the year 2003-04 reflects
Navtej Singh's name in the cultivation column. In his cross-examination, the
petitioner-complainant has admitted that Navtej Singh was in possession of the
land that was mortgaged in his favour. Therefore, the allegation of forgery of
jamabandi for the year 2003-2004 remains unfounded.
9. This Court is of the considered opinion that the present case is an
instance of a civil dispute being given the cloak of a criminal offence. The sole
test to ascertain whether the initiation of criminal proceedings in a cheating case
is merited is to assess whether a culpable intention can be attributed to the
accused since the very beginning. Unless and until the dishonest intention right
at the inception for the performance or the entrustment in terms of any
transaction of civil nature is present, the criminal proceedings are totally
unwarranted and the remedy lies in civil law. A two Judge bench of the Hon'ble
Supreme Court in Vesa Holdings P. Ltd. v. State of Kerala (2015) 8 SCC 293,
Speaking through Justice C. Nagappa, observed as follows:
" 9. It is true that a given set of facts may make out a civil wrong as also
a criminal offence and only because a civil remedy may be available to
the complainant that itself cannot be a ground to quash a criminal
proceeding. The real test is whether the allegations in the complaint
disclose the criminal offence of cheating or not. In the present case there
is nothing to show that at the very inception there was any intention on
behalf of the accused persons to cheat which is a condition precedent for
an offence under Section 420 I.P.C. In our view the complaint does not
disclose any criminal offence at all. Criminal proceedings should not be
encouraged when it is found to be malafide or otherwise an abuse of the
process of the court. Superior courts while exercising this power should
also strive to serve the ends of justice. In our opinion, in view of these
facts allowing the police investigation to continue would amount to an
abuse of the process of court and the High Court committed an error in
refusing to exercise the power under Section 482 Criminal Procedure
Code to quash the proceedings."
10. In view of the facts and circumstances of the case, this Court finds
no perversity or illegality in findings recorded by the learned Additional
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Sessions Judge, Gurdaspur in the impugned judgment dated 27.04.2018 which
warrants interference. Hence, the instant revision petition stands dismissed.
11. The connected revision petition is also disposed of in the
aforementioned terms.
12. Pending miscellaneous application(s), if any, also stand disposed
of.
(HARPREET SINGH BRAR)
JUDGE
14.03.2024
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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