1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 293/1999 Decided on: August 11, 2010 J.P. Chatrath …Appellant. VERSUS Khem Chand Chauhan & ors ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Neeraj Gupta, Advocate. For the respondents: Mr. K.D.Sood with Mr. Mukul Sood, Advocates R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under section 378(4) of Code of Criminal procedure in reference to the order dated 20.4.1999 passed by Sub Divisional Magistrate, Kandaghat Camp at Solan, HP in complaint No. 156/2 of 95, thereby acquitting the respondents / accused for the offences under Sections 467,471,323,427 and 109 IPC. 2. The complaint, under the aforesaid offences, was filed by the appellant, alleging that the complainant is the owner of land situated at Solan which was purchased by him from one Smt. Whether the reporters of the local papers maybe allowed to see the judgment? 2 Parkashwati, as said Smt. Parkashwari was also the owner of the adjoining land and a passage was existing in Khasra No. 390 measuring 63 sq meters being used by the complainant, which was acknowledged by Parkashwati in her Power of Attorney executed in favour of respondent No.1, i.e. Khem Chand Chauhan. According to the complainant, Parkashwati expired on 21.1.1990 and after her death, respondent No.1 connived with respondent No.2/Madhu Thapa and respondent No.3/Khewan Ram and on the basis of earlier Power of Attorney( in short called ‘GPOA’) executed sale deeds on 17.2.1990 and 20.3.1990 respectively. Knowing the death of Parkashwati, the said ‘GPOA’/respondent No.1 Sh.Khem Chand Chauhan has illegally sold the adjacent property. Investigation was made and the accused/respondents were charged for the aforesaid offences and the case was tried by the learned Judicial Magistrate. 3. In order to prove its case, complainant examined as many as four witnesses, whereas on behalf of accused, two defence witnesses were examined. 4. On the basis of witnesses and material on record, we have also come to know that another subsequent ‘GPOA’ was executed by legal representatives of Parkashwati in favour of Khem Chand Chauhan (accused/respondent No.1). On the basis of that subsequent ‘POA’, new sale deeds with respect to the same property were made. The piece of land earlier sold to respondents No. 2 and 3 were subsequently again sold to respondents No. 2 & 3. Learned Judicial Magistrate has analysed the testimony of the complainant the testimony of CW-2, Gobind Ram, CW-3 Urmila Devi and CW-4 Darshana, Registration Clerk and DW-2, D.C. Malhotra, son of Parkashwati, a most material 3 witness, who has deposed that Parkashwati expired on 21.1.1990 at Delhi but neither any intimation of death was sent to anybody except publishing an obituary in Hindustan Times nor any intimation was given to the accused nor the accused had come to Delhi. DW-2 also deposed that his mother had agreed to sell the piece of land to the accused/accused No. 2 and 3 for a consideration of Rs. 30,000/- and payment whereof had already been received by his mother through a draft. It has also been deposed that K.C. Chauhan came to know about the death of his mother only in the month of April, 1990 when he came to Solan and after the death of Parkashwati, K.C. Chauhan had returned the ‘General Power of Attorney’ (GPOA) as such and therafter the L.Rs of Parkashwati have executed the fresh sale deed in favour of accused/respondents 2 and 3. DW-2 in his cross has also indicated that he had not gone to the complainant on 31st March, 1990. This suggestion was found not material by the learned Judicial Magistrate as both the documents CW1/A and CW1/B were executed before 31st March, 1990. It has also been noted by learned Judicial Magistrate that 63 meter passage had been given to the complainant from khasra No. 390 and the house of the complaint is in the same condition which he had seen it and there is no change even of boundary. It was also noticed that if any passage was blocked it was of no use . From the testimony of DW-2 it could be inferred that DW-2 has not apprized the accused/respondents 2 and 3 or any one about the death of his mother either by sending intimation. As such, respondent No.2 cannot be said to have forged the sale deed. It is also not appearing from the testimony of DW-2 that money received by Parkashwati in respect of sale by accused/respondent No.1 to 4 respondents No. 2 & 3 regarding adjacent land, has not been acknowledged. On the contrary, it emerges that respondents/accused had returned the documents to DW-2 and suit was filed and a frsh sale deed was executed for and on behalf of Parkashwati in favour of respondents No. 2 & 3. In these circumstances, the complainant’s case was treated to be vitiated having been filed on the ground of malafide intention. 5. From the analysis of the material on record, it reveals that respondent No.1 has not any intention or motive to play fraud or forgery. The L.Rs of Parkashwati never raised any objection of any fraud, forgery, any misrepresentation or any ill motive played by respondent/accused No.1, rather, the L.Rs subsequently executed sale deed in favour of respondents No. 2 and 3 in order to rectify the deficiencies in earlier sale deed dated 17.2.1990 and 20.3.1990 made by accused/respondent No.1. If accused were involved in fraud for forgery or had they any intention to execute sale deeds despite the knowledge of death of Parkashwati, the the LRs of Parkashwati could not have spared the accused also. 6. From the perusal of documents also, it appears that Exts CW-1/A and CW1/B were drafted on 14.2.1990 and first sale deed was made on 17.2.1990 and the second sale was made on 20.3.1990. 7. On analyze, if there was any intention of making forgery or fraud, then in that condition, the sale deed executed in favour of accused respondents No. 2 and 3 could have been made as earliest, probably on the same day i.e. on 17.2.1990. This also suggest that the accused were not aware of the death of Parkashwati as they acted bonafidely without any dishonest or fraudulent intention. On the basis of 5 material on record, learned Judicial Magistrate vide impugned order has observed in paragraphs 20 and 25 as below: “ 20. The parties are involve din protracted litigation and their relations are not cordial. It is, therefore, clear that present complaint is result of said hostile relations. The evidence is neither cogent nor satisfactory and does not point out to the guilt of the accused inevitably and exclusively and there is no criminal intention on the part of accused to cause wrongful gain or loss. Similarly, there is no evidence that accused actually committed forgery or used the documents as genuine documents. Hence, it can be safely concluded that complainant has miserably failed to bring guilt of the accused at home beyond the shadow of reasonable doubts. In the circumstances, points No.1 and 2 are decided against the complainant and in favour of accused.” “25. Complainant has categorically admitted that a civil litigation is pending between the parties. It appears that there is a dispute regarding user of path and, as such, parties have rightly approached civil court. The dispute between the parties is of civil nature and there is no criminal intention in commission of crime and complaint appears to have been filed with malafide intention so as to settle old scores. In the circumstances complainant has fialed to prove on record that accused intentionally caused mischief by digging boundary wall of the complainant. Hence, it can be safely concluded that the complaint has miserably failed to bring guilt of the accused at home beyond shadow of reasonable doubt. In the circumstances, point 6 No.3 is decided against the complainant and in favour of accused.” 8. We have carefully gone through the records. We are not able to understand how the complainant was aggrieved by the sale transactions dated 17.2.90 and 20.3.90 made by accused respondent No.1 in favour of respondents No.2 and 3 as any grievance would have been of the nature of civil dispute and in view of the above analysis , we are of the considered view that the analysis made above by the said Judicial Magistrate is legally correct. We also find that there could not be any ill motive, bad intention, any fraud, forgery, cheating on the part of respondent No.1 while making sale, as indicated above on the strength of earlier ‘GPOA’ as respondent No.1 and another accused were not aware about the death of Smt. Parkashwati as the testimony of DW-2 also testifies such status of ignorance about the death of Smt. Parkashwati. 9. In the facts and circumstances, we do not find any scope of interference in the impugned judgment passed by the Learned Judicial Magistrate, hence, the criminal appeal, being devoid of merit, is accordingly dismissed. 10. Bail bonds, furnished by the respondents, are hereby discharged. ( R.B.Misra ), J. 11th August, 2010 ( V.K.Sharma ), J. (sl) 7