Crl. Revision No. 1370 of 2001 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No. 1370 of 2001(O&M) Date of Decision: 07.9.2011. Shamsher Singh ........Petitioner Vs. Narjit Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. G.S.Punia, Advocate for the petitioner. Mr. H.S.Deol, Advocate for the respondent. ..... SABINA, J. Petitioner has filed this petition under Section 401 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) challenging the order dated 02.7.2001 whereby charge was framed against him by the trial court. The contents of the complaint (Annexure P-1) read as under:- (1) That the complainant is the owner of land measuring 49K-1M as mentioned in the jamabandi for the year 1987-88, situated at village Heeran, H.B. No. 217, Tehsil and Distt. Ludhiana. (2) That Shamsher Singh accused was a partner with the complainant and Smt. Devinder Kaur w/o S.Birpal Singh a real brother of the complainant in Crl. Revision No. 1370 of 2001 (O&M) -2 - M/s Shri Pratap Rice and General Mills, Machiwara. (3) That after retirement of Shamsher Singh accused from the partnership vide retirement on 31.7.1987. Smt. Devinder Kaur and complainant continued with the partnership of the firm. They had however joined the hands of Sh. Rajinderpal Singh as a son of Devinder Kaur, as a partner. (4) That the cordial relations between the complainant and the accused continued. The complainant had full confidence in the accused and trusted him the most. Incidentally he had also attested the will executed by the complainant which fact also shows the confidence enjoyed by the accused. (5) That Shamsher Singh accused readily and on more asking had arranged a loan of Rs. 2 lacs at the rate of 2.5% p.a. For the complainant on 29.8.1988 from Smt. Amarjit Kaur w/o Bacham Singh who is in turn is the s/o step brother of the accused. The was only a short term loan, since it was only required for the purchase of paddy crop available in the month of Sept. 1988. (6) That the entire amount of Rs. 1 lac with interest was to be returned by the complainant to the accused on 4.10.1998, the accused had assured the complainant at that time that he would get the documents signed back from Smt. Amarjit Kaur Crl. Revision No. 1370 of 2001 (O&M) -3 - alongwith receipts from her. (7) That Shamsher Singh accused told the complainant that she had lost the original document, received back from Smt. Amarjit Kaur after due payment. (8) That in order to justify his assertion the accused gave in writing to the complainant assuring that Rs. 2 lacs alongwith interest had been paid to Smt. Amarjit Kaur in the presence of Sh. Baljit Singh and Sanjay Garg. (9) That the complainant further assured about the payment by the accused by his own act and conduct when he secured another loan of Rs. 80,000/- on 6.10.1998 against the security of the same land from Surjit Kaur regarding which the original documents were allegedly lost by the accused. The agreement in question executed by the complainant in favour of Surjit Kaur was also signed as an attesting witness by the accused. The possession of the land was also given to her in his possession of the land was also given to her in his presence. Interningly Shamsher Singh was also an attesting witness of the similar agreement executed by the complainant in favour of Amarjit Kaur, a very close relation of the accused. (10) That from the perusal of both the documents the following circumstances are clear and cogent which lead to only conclusion that the accused Crl. Revision No. 1370 of 2001 (O&M) -4 - very cleverly and in a systematic manner has cheated and defrauded the complainant and misappropriated huge amount of the complainant:- (a) Both the alleged agreement pertained to the sale of the same land. (b) In case the amount of Rs. 2 lacs and the accused interest thereon has not paid on 4.10.1998 to Amarjit Kaur, then the second and similar be executed at the same price i.e. Rs. 40,000/- especially when the accused was present at the time and had known and was fully aware of the earlier agreement. (c) That recital in the second agreement “free from all encumbrances” is very crucial. This could not be there of the earlier payment was not made. (d) That the alleged earnest money in first forged agreement was Rs. 1.5 lacs in the second alleged agreement. (e) How was it feasible to deliver possession to Surjit Kaur when it was already with Amarjit Kaur. (f) How the date for executing the second sale deed be 6.10.1991 especially when the date of execution of earlier alleged sale deed was fixed for 15.2.1989. (g) How could the complainant dare approach Crl. Revision No. 1370 of 2001 (O&M) -5 - Piara Singh deed writer for the second alleged agreement especially when he had drafted the earlier alleged agreement with Amarjit Kaur only two months before regarding the same land. He would be apprehensive atleast that he might expose him. (h) Last but not least, he would not take along him Shamsher Singh accused and made him as attesting witness since he had known about the alleged agreement regarding the same land with Amarjit Kaur, his Sister-in-law. He would have been hurdle in the execution of the second agreement. The accumulative effect of all the above mentioned circumstances, is more that enough to negative the execution of the sale deeds in question which are admittedly signed by the accused. (11) That the complainant had signed either agreement in good faith believing the accused. (12) That Smt. Amarjit Zkaur denied the receipt of Rs. 1 lac alongwith the accused interest from the accused in her suit against the complainant. The complainant was forced to file a civil suit for the amount involved in against the accused on 4.10.1995. Crl. Revision No. 1370 of 2001 (O&M) -6 - (13) That a notice to this effect was sent to the accused through Sh. Sukhpat Rai Wadhera, Advocate, Ludhiana on 16.2.1995. The contents of the same however have been very conveniently denied by him after a considerable delay in reply. (14) Under these circumstances u/s 406/420 IPC is made out against the accused. (15) It is, therefore, prayed that the accused be kindly summoned in the case and be punished according to law after due trial. In support of his case, the complainant led his preliminary evidence and vide the impugned order dated 21.1.2000 (Annexure P-2), the trial court dismissed the complaint filed by the complainant. Aggrieved by the said order, the complainant preferred a revision petition and vide judgment dated 03.10.2000 (Annexure P-3), the same was allowed and the trial court was directed to pass a fresh order in accordance with law. Thereafter, vide the order dated 19.5.2001, the trial court ordered that the petitioner be summoned to face the trial for an offence under Sections 406, 420 of the Indian Penal Code ('IPC' for short). Vide the impugned order dated 02.7.2001, charge under Section 406, 420 IPC was framed against the petitioner. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. Admittedly, qua the amount in dispute, the complainant had filed a suit for recovery. The said suit was dismissed by the trial court and appeal filed against the said judgment and decree was dismissed by the appellate court. The Crl. Revision No. 1370 of 2001 (O&M) -7 - complainant has not preferred any further appeal against the said judgment and decree. Since the complainant has failed to establish his case qua the amount in dispute in the civil suit, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, this petition is allowed. The impugned order dated 02.7.2001 is set aside. (SABINA) JUDGE September 07, 2011 Gurpreet