IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2391 of 2003 Date of decision: 3 rd March, 2010 Ram Kishan and another … Petitioners Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Rahul Sharma, Advocate for the petitioners. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Ram Kishan and Bant Singh, both sons of Baru Singh. They were tried in case FIR No.163 dated 19.10.1991 registered at Police Station Sadar Rajpura under Sections 468, 471, 420, 109 IPC. Petitioners were named as accused along with Sukhdev Singh son of Sant Singh, Harbans Kaur widow of Sant Singh, Amar Singh son of Baru Singh and Gurmail Singh son of Natha Singh. The trial Court acquitted Sukhdev Singh and Harbans Kaur. Amar Singh died during the trial. The trial Court held both the petitioners Ram Kishan and Bant Singh, along with Gurmail Singh, guilty of offence under Section 109 and 471 IPC. All the accused were sentenced by the trial Court as under: Under Section Imprisonment Fine In default of payment 109 IPC 1 Year RI 300/- each To undergo RI for 20 days. Criminal Revision No. 2391 of 2003 471 IPC 1 Year RI 300/- each To undergo RI for 20 days. Aggrieved against the same, Ram Kishan, Bant Singh and Gurmail Singh filed an appeal. The appellate Court accepted the appeal of Gurmail Singh, however upheld the sentence of both the petitioners. In the present case, a written complaint Ex.PW2/A was filed by Badan Singh son of Mal Singh. On the basis of this complaint, formal FIR PW3/5 was registered. Briefly stated, land measuring 9 bighas and 12 biswas was mortgaged by Saun Singh and Smt.Manohri with one Munsha Singh for Rs.2700/-. Later-on, Saun Singh and Smt.Manohri sold the land to accused Amar Singh, Ram Kishan and Bant Singh, sons of Baru Singh. Munsha Singh had died issueless. Sukhdev Singh was declared as successor of Munsha Singh on the basis of Will. Sukhdev Singh was pronounced as successor after the litigation was contested. Sukhdev Singh further appointed one Harbans Kaur as his general Attorney. It is stated that a receipt dated 23 rd December, 1978 in favour of Amar Singh, Ram Kishan and Bant Singh was executed by Harbans Kaur stating therein that the entire mortgaged consideration has been received and the mortgage land has been redeemed. On the basis of this receipt, mutation could not be sanctioned, therefore, it is stated that a receipt dated 7 th June, 1991 was forged in which it was shown that Rs.2700/- were received by Munsha Singh. Munsha Singh could not execute this receipt, as he had died many years ago. The matter of fact remains that even though the mortgage land was redeemed and a receipt was issued by Harbans Kaur, there was a question regarding the competence of Harbans Kaur. A receipt was forged to be executed by Munsha Singh, 2 Criminal Revision No. 2391 of 2003 who had died. The following findings of the trial Court are required to be reproduced hereunder: “However, all Ld. Counsel for the accused have admitted the receipt dated 7.6.91 Ex.PA is forged and fabricated the mutation No.2363, copy of which is mark D is forged and fabricated as Munsha died way back in the year 1969. After hearing the rival submission and going through the record on file carefully, I find some force in the arguments of Ld. Addl. P.P. for the State. As far as act of cheating and of dishonestly inducing the delivery of the property is concerned that stands miserably unproved on record. Neither there was any property which was to be delivered dishonestly after the inducement nor that was so done. The present case is of forgery and fabrication of receipt dated 7.6.91 Ex.PA and the mutation No.2363 where the executant of the receipt Ex.PA and party to the mutation No.2363 was dead way back in the year 1969. As far as the guilt of the accused Sukhdev Singh and Harbans Kaur is concerned that stands unproved on record by the prosecution. No witness of the prosecution has ever uttered even a single word in support of the culpability of these accused. There is a receipt dated 23.12.78 Ex.PB executed by accused Harbans Kaur in favour of the accused Amar Singh, Ram Kishan and Bant Singh for consideration of receiving Rs.2700/- (mortgaged amount). When these accused have already executed a receipt admitted by prosecution witnesses PW1 dated 23.12.78 then there was for them to indulge forgery of receipt dated 7.6.91 behind Munsha Singh deceased which was already dead in the year 1969 and whose legal heirs accused Sukhdev Singh has already been declared. Therefore, in the opinion of this Court, the prosecution has failed to prove the guilt of the 3 Criminal Revision No. 2391 of 2003 accused Sukhdev Singh and Harbans Kaur in the forgery of receipt Ex.PA and mutation No.2363. As far as the guilt of the accused Ram Kishan and Bant Singh is concerned that stands duly proved on record by the prosecution. It is pertinent to mention here that the land measuring 9 Bighas, 12 Biswas situated in village Bhappal described in the brief facts, was the property of one Saun Singh son of Sunder Singh and Smt.Manohri Devi Wd/ of Kehar Singh. These persons mortgaged the said property for Rs.2700/- with Munsha son of Sh.Wasawa Singh. Munsha Singh died, as admitted by both the parties, in the year 1969 issueless. Accused Sukhdev Singh was declared as his successor and he appointed Harbans Kaur as his general attorney. Vide registered sale deed dated 24.3.69, certified copy of this mark A on the file, said owners Saun Singh and Manohri sold this land to accused Amar Singh, Ram Kishan and Bant Singh. As per the receipt of sale deed Rs.2700/- was left with accused Amar Singh, Ram Kishan and Bant Singh for payment and redemption of the mortgaged property, who was declared successor of deceased Munsha duly executed a receipt dated 23.12.78 Ex.PB after receiving Rs.2700/- mortgaged amount from accused Amar Singh, Ram Kishan and Bant Singh. Admittedly no mutation with regard to this was got sanctioned from the revenue authorities. The perusal of the receipt Ex.PB shows that there is an over writing over the figure 2700/- 2800/- of the amount. May be due to this over writing this document was not relied by the revenue authorities and no mutation was got sanctioned. The only persons who could be injured from non sanctioning of the mutation of said loan can be accused Amar Singh who has now deceased and accused Ram Kishan and Bant Singh as the property was to be mutationed in their name. Then on 7.6.91 a receipt Ex.PA was got prepared. Admittedly this receipt is forged and 4 Criminal Revision No. 2391 of 2003 fabricated as the executant of this receipt Munsha Singh died way back in the year 1969.” The trial Court further held that the prosecution had failed to prove that accused Sukhdev Singh had cheated the complainant Badan Singh. Furthermore, the trial Court held that the prosecution has failed to prove that the receipt forged by Sukhdev Singh was to be used for the purpose of cheating. The Court held the petitioners guilty only on the ground that they were beneficiaries of the alleged fabricated receipt. However, this receipt was not relied upon and in actual terms no benefit was obtained. The lower appellate Court noticed the contention of the defence counsel that the petitioners Ram Kishan and Bant Singh had already been penalized by the High Court in Regular Second Appeal No.713 of 2002 titled ‘Jai Singh and others’. In the present case, charge was framed against the petitioners on 11th September, 1996. The age of the petitioner Ram Kishan was recorded as 62 years and that of Bant Singh as 60 years. Their brother Amar Singh had already expired. At this moment, both the petitioners Ram Kishan and Bant Singh are present in Court. On their appearance, they look very old also. Both the petitioners have undergone 16 days of the actual sentence awarded to them. Taking into consideration the age of the petitioners, this Court is of the view that no useful purpose will be served by sending the petitioners behind the bars at this stage, therefore, they are ordered to be released on probation under Probation of Offenders Act, 1958 for a period of one year on furnishing personal/surety bonds to this effect to the satisfaction of Chief Judicial Magistrate, Patiala with an undertaking to 5 Criminal Revision No. 2391 of 2003 maintain peace, good conduct and behaviour during the period of probation. However, cost of litigation is assessed at Rs.20,000/- qua each petitioner. The petitioners will be called upon by the Chief Judicial Magistrate, Patiala to furnish bonds and to deposit the cost. In case the petitioners commit breach of any of the terms and conditions of the bonds, they will be called upon by the trial Court to undergo the sentence awarded. Non deposit of the amount of cost shall be construed as dismissal of the present revision petition and benefit of probation shall not accrue to the petitioners. With the observations made above, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE March 3, 2010 rps 6