CRL. MISC. NO.M-30194 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRL. MISC. NO.M-30194 OF 2009 DECIDED ON : 30.11.2009 Sarabjit Singh and anr. ...Petitioners versus State of Punjab ...Respondent and CRL. MISC. NO.M-30397 OF 2009 Gurjeet Singh and anr. ...Petitioners versus State of Punjab ...Respondent and CRL. MISC. NO.M-28942 OF 2009 Faqir Mohd. ...Petitioner versus State of Punjab ...Respondent CORAM : HON'BLE MR. JUSTICE S. S. SARON Present : Mr. R. S. Rai, Senior Advocate with Ms. Meenakshi Dogra, Advocate, for the petitioners in CRM No. M-30194 of 2009. CRL. MISC. NO.M-30194 OF 2009 -2- Mr. K.V.S. Kang, Advocate, for the petitioners in CRM No. M-30397 of 2009. Mr. G. N. Malik, Advocate, for the petitioner in CRM No. M-28942 of 2009. Mr. P. S. Sidhu, Additional AG, Punjab. Mr. D. S. Malwai, Advocate, for the complainant. S. S. SARON, J. Mr. K. V. S. Kang, Advocate appearing for the petitioner in Crl. Misc. No. M-30397 of 2009 submits that he may be allowed to correct the memo of parties and the father's name of the petitioners Gurjeet Singh and Jagmeet Singh @ Babli, be mentioned as 'Bhura Singh' instead of 'Gurdev Singh'. Necessary correction is allowed to be made in the original petition. Learned counsel may correct the father's name of the petitioners as Bhura Singh and sign the same. Necessary correction has been carried out. This order will dispose of Crl. Misc. No. M-30194 of 2009 filed by Sarabjit Singh and Nirmaljit Singh sons of Gurdev Singh, Crl. Misc. No. M-30397 of 2009 filed by Gurjeet Singh and Jagmeet Singh @ Babli sons of Bhura Singh and Crl. Misc. No. M- 28942 of 2009 filed by Faqir Mohd. son of Ali Mohd. The FIR has been registered on the statement of Gurmeet Singh son of Baldev Singh for taking action against CRL. MISC. NO.M-30194 OF 2009 -3- Gurdev Singh, Bhura Singh, Kirpal Singh sons of Modan Singh; Nirmal Singh @ Billu and Sarabjit Singh sons of Gurdev Singh; Gurjeet Singh and Babli (@ Jagmeet Singh) sons of Bhura Singh, residents of village Banganwali and female members of the family for cheating and grabbing property. It is alleged by the complainant that he is a resident of village Bakarpur, Tehsil and District Mohali and does agriculture work. He along with Gurminder Singh son of Amar singh and Naresh Kumar son of Yogi Ram as also Ravi Goyal son of Tilak Raj, were doing the work of property dealing. On 08.09.2009, Gurminder Singh and Sonu along with Gurdev Singh, Bhura Singh and Kirpal Singh sons of Modan Singh and Nirmal Singh @ Billu, Sarabjit Singh sons of Gurdev Singh and Gurjit Singh and Babli (@ Jagmeet Singh) sons of Bhura Singh, had represented that they want to sell their 64 bighas of land in village Rajindra Puri, P.S. Sadar Dhuri, District Sangrur. For the sale of the said land, Gurminder Singh and Sonu acted as middlemen and finalized the deal at the rate of Rs.15 lacs per acre. On 09.09.2009, the said intending sellers came with the records of the land and an agreement was scribed at P.P.Jewellers, Show Room No. 8, Sector-26, Chandigarh, in the presence of witnesses. According to the agreement, the date for the registration of the sale deed of land was fixed for 30.04.2010. A sum of Rs.25 lacs was paid to Gurdev Singh in cash and a cheque of Rs.10 lacs was given. This was as earnest money. It was settled that on 16.09.2009, the CRL. MISC. NO.M-30194 OF 2009 -4- intending sellers would return the cheque of Rs.10 lacs and take Rs.10 lacs in cash. On 16.09.2009, the complainant side asked Gurdev Singh etc. to bring the cheque and take Rs.10 lacs in cash but Sarabjit Singh told them on phone that his brother Nirmal Singh had gone out and would come back in the evening. So they, i.e the complainant side should come to village Bangawali and take the cheque and give the cash. The complainant Gurmeet Singh along with Gurminder Singh son of Amar Singh, Manjit Singh son of Harjinder Singh and Gurmeet Singh son of Gurdev Singh came to the village Banganwali at 6'O clock in the evening where the accused persons were present. Sarabjit Singh demanded a sum of Rs.10 lacs in cash. The complainant side gave the cash and asked Nirmal Singh to sign the agreement and also demanded the return of the cheque. While signing the agreement, Nirmal Singh it is alleged snatched the agreement and an altercation ensued between them and some torn portion of the agreement came in the hand of the complainant. Meanwhile, Nimral Singh ran outside with a part of the torn agreement. When the complainant side tried to catch Nirmal Singh, then Gurdev Singh, his brother Bhura Singh and their sons Gurjeet Singh and Babli (@ Jagmeet Singh), Sarabjit Singh and the female members of the family cornered the complainant side and took them in a room and threatened them that if they spoke to anybody about the incident, then they would be killed. The complainant side got afraid and came out of the CRL. MISC. NO.M-30194 OF 2009 -5- house of the accused after begging them and went away in their vehicle. They did not go to the police earlier as they were afraid. They gave an application detailing what had happened to them. The above mentioned accused persons and the ladies, it is alleged had hatched a conspiracy and called the complainant side to Bangawali and snatched the agreement besides, they took away Rs.10 lacs and also the cheque of Rs.10 lacs with an ill intention. They had confined the complainant side in a room and threatened them. Therefore, action was sought against the accused. Learned Senior counsel appearing for petitioners Sarabjit Singh and Nirmaljit Singh has contended that the entire sequence of events is false, inasmuch as the complainant side is per force trying to enforce the agreement which was never entered into with the petitioners. It is submitted that the allegations of giving cash of Rs.10 lacs and taking away cheque, are not borne out from the record. In case the accused had indeed given cheque of Rs.10 lacs, the same would have been encashed by the complainant side and there was no need for the complainant and others to come all the way to Bangawali to give Rs.10 lacs as cash and take the cheque. Besides, it is submitted that on the basis of agreement, the entire lady members of the family of the petitioners were harassed by the police and two of them were arrested and confined to police custody. Besides, Gurdev Singh and Bhura Singh who are aged persons and it is CRL. MISC. NO.M-30194 OF 2009 -6- not even alleged that they executed any agreement, but yet they were arrested and thereafter have been granted regular bail. Mr. K.V.S. Kang, Advocate appearing for petitioners Gurjeet Singh and Jagmeet singh @ Babli reiterates the contentions of learned senior counsel appearing for Sarabjit Singh and Nirmaljit Singh., Mr. G. N. Malik, Advocate appearing for petitioner Faqir Mohd., submits that the said petitioner is not even named in the FIR and his name figures only in the supplementary statement. It is submitted that he has been wrongly named as the main person who had introduced the accused and the complainant party. In response, Mr.P. S. Sidhu, Additional A.G. Punjab, learned counsel for the State and Mr. D.S.Malwai, Advocate learned counsel for the complainant, have submitted that the petitioners have defrauded the complainant of Rs.35 lacs and one cheque of Rs.10 lacs, payment of which was stopped by Naresh Kumar, one of the intending purchasers, on the next day. Therefore, it is submitted that the petitioners have committed fraud. Besides, they have confined the complainant side in a room at village Bangawali and beat them up. Therefore, they are not entitled to the concession of pre-arrest bail. I have given my thoughtful consideration to the submission made by learned counsel for the parties and also gone through the records. CRL. MISC. NO.M-30194 OF 2009 -7- The factual position is that Modan Singh had three sons namely Gurdev Singh, Bhura Singh and Kirpal Singh. Gurdev Singh and Bhura Singh have been admitted to regular bail. Sarabjit Singh and Nirmaljit Singh are the sons of Gurdev Singh. Gurjit Singh and Jagmeet Singh @ Babli are the sons of Bhura Singh. As per allegations in the FIR, Gurminder Singh of village Bakarpur and Sonu along with Gurdev Singh, Bhura singh sons of Modan Singh, besides Nirmaljit Singh @ Billu and Sarabjit Singh sons of Gurdev Singh as also Gurjeet Singh and Babli (@ Jagmeet Singh) sons of Bhura Singh, came to the complainant and represented that they have 64 bighas of land which they wanted to sell. The deal was settled for which Gurminder Singh and Sonu acted as middlemen and finalized the deal for Rs.15 lacs per acre. On 09.09.2009, the above said persons who are the family members of Modan Singh, came to the complainant with records of the land and an agreement was scribed at P.P.Jewellers, Show Room No. 8, Sector-26, Chandigarh, in the presence of the witnesses. A sum of Rs.25 lacs was paid to Gurdev Singh and a cheque of Rs.10 lacs was given as earnest money. It was settled that the intending purchasers will return the cheque and take Rs.10 lacs in cash. Thereafter, an incident occurred on 16.09.2009 in which the agreement in question was snatched by the accused and torn by Nirmal Singh. Learned counsel for the State and the complainant have not been able to show on the basis of record, as to the CRL. MISC. NO.M-30194 OF 2009 -8- source of Rs.25 lacs that is stated to have been paid by the complainant to the accused. No investigation in this regard has been conducted by the police so far. Ravi Kumar Goyal, who is one of the intending purchasers, has submitted a Statement of Accounts of Durga Oil & Flour Mills. It is stated that he is the owner of the said firm and an amount of Rs.5 lacs is shown to have withdrawn in cash on 09.09.2009. This, according to learned counsel for the complainant, was part of the amount of Rs.25 lacs which was given to the accused. Besides, on 16.09.2009, there is entry of withdrawal of cash amount of Rs.4,78,200/-. This, it is submitted is part of the cash payment of Rs.10 lacs. As per police investigation, the counterfoil statement of Naresh Kumar son of Yogi Ram, one of the intending purchasers, has been produced in which a cheque for an amount of Rs.10 lacs was drawn on 09.09.2009 in favour of Sarabjit Singh, the payment of which is shown to have been stopped. The torn portion of the agreement which has been taken in possession by the police has also been shown. The reverse side of the same shows that it was issued by the stamp vendor Balwinder Singh of S.A.S. Nagar, Mohali on 09.09.2009. Statement of Balwinder Singh has been recorded under Section 161 of the Code of Criminal Procedure. Photostat copy of the relevant entry of the stamp vendor's register i.e at Serial No.1984, has been taken in possession by the police. In terms of the statement of Balwinder Singh, it has been stated that he has CRL. MISC. NO.M-30194 OF 2009 -9- seen the rear side of the stamp paper where seal of his name appears and it is signed by him. As per his record, this stamp paper has been issued against Serial No.1984 dated 09.09.2009. The stamp paper had been issued by him in the name of Kirpal Singh, Modan Singh and others residents of village Bangawali, Tehsil Dhuri, District Sangrur, which was taken by Babu Munshi Puri , Deed Writer under his signatures. He has given Photostat copy of the relevant page containing the entry from his register. In terms of the Photostat copy of the relevant page of the register, the stamp paper for a denomination of Rs.2000/- has been issued in the name of Kirpal Singh, Modan Singh and others through Babu Munshi Puri, Deed Writer, Mohali. The facts and circumstances of the case show that the source of amount of Rs.35 lacs which is stated to have been paid to the accused i.e Rs.25 lacs in cash on 09.09.2009 and Rs.10 lacs on 16.09.2009 has not clearly been brought out. It is not shown as to why stamp paper of Rs.2000/- has been got issued for scribing an agreement to sell. The revenue record which according to the FIR was brought by the accused at the time of signing of agreement, has also not been placed on record or submitted before the prosecution for the purposes of investigation. There is no allegation that the revenue record was also snatched by the accused persons on 16.09.2009. The revenue record would have shown as to in whose name the land is recorded. According to the complainant, the cheque was CRL. MISC. NO.M-30194 OF 2009 -10- issued by Naresh Kumar in favour of Sarabjit Singh. However, there is nothing to show whether Sarabjit Singh is owner of the land. Learned counsel for the complainant has mentioned that he has photographs and C.Ds showing the handing over of the cash to the accused at the premises of P.P.Jewellers. Some of the photographs have been shown during the course of hearing. According to the photographs, it is stated that cash amount, is shown being given at the accused in the premises of said P.P.Jewellers where CCTV is said to be installed. However, this aspect is to be investigated by the police as from the photographs as shown some cash is lying on the table but it is not clear as to whether the cash is being handed over to some one and if so to whom? It is not explained that in case Nirmal Singh had snatched the agreement, as alleged in the FIR, then why others, including the female members, have been implicated in the present case and two ladies have been arrested by the police. Kirpal Singh, in whose name the stamp paper was purchased, is stated to be 80 years of age. In any case he has not been arrested in the case. The role of Faqir Mohd. has been brought out in the supplementary statement and is not in the initial version of the FIR. In case he was the main person who had introduced the accused to the complainant, his name was liable to figure in the FIR itself. Rather in the FIR, it is alleged that Gurminder Singh and Sonu had brought the accused. CRL. MISC. NO.M-30194 OF 2009 -11- Gurminder Singh and Sonu are not the accused in the FIR. It may also be noticed that even though the agreement is stated to have been torn, the complainants are property dealers and they must be having photostat copies of the agreement, which they have not produced. The Photostat copies of the documents, considering that they have paid a sum of Rs.25 lacs on 09.09.2009 would in all probability be with them. This is more so for the reason that they claim to have photographs and C.Ds of cash lying on the table, which it is stated was being handed over to the intending purchasers. Besides, there is no receipt of Rs.25 lacs. The said circumstances would, however, require to be investigated by the police, before filing the challan. For the present, it would be just and expedient that the petitioners are granted the concession of pre-arrest bail so as to enable them to join the investigation. The investigation is primarily based on documentary evidence including the revenue records, which would be required to be examined as regards the land holdings of the accused. Therefore, the custodial interrogation of the accused would not be necessary. Keeping in view the facts and circumstances, the crl. Misc. petitions are allowed and the petitioners in the respective petitions, in the event of their arrest, shall be admitted to bail on their furnishing personal bonds and surety each to the satisfaction of the Arresting/Investigating Officer. The petitioners CRL. MISC. NO.M-30194 OF 2009 -12- shall join the investigation, as and when required by the police. They shall abide by the conditions, as envisaged by the provisions of Section 438 (2) of the Code of Criminal Procedure. It is, however, made clear that nothing observed herein above shall be construed as an expression of opinion on the merits of the case and the investigations shall be carried out by the police uninfluenced by the observations made herein and when case the charge report (challan) is filed, the same shall be considered by the competent Court independently on the basis of material and evidence available before it on record. NOVEMBE5R 30, 2009 (S. S. SARON) shalini JUDGE