CRR No.3058 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.3058 of 2009 (O&M) Date of decision: 12.01.2011 Dewan Singh ....Petitioner Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. T.S. Sangha, Sr. Advocate, with Mr. Balbir Singh Sewak, Advocate, for the petitioner. Mr. K.D. Sachdeva, Addl. A.G., Punjab. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Dewan Singh has filed present revision challenging the judgment dated 30.9.2008 passed by Additional Chief Judicial Magistrate, Bathinda, as well as judgment dated 3.11.2009 passed by Additional Sessions Judge (Fast Track Court), Bathinda, thereby confirming the conviction and sentence of the accused-revisionist under Sections 420/343 IPC and directing Dewan Singh-revisionist to undergo rigorous imprisonment for a period of two years. The brief facts of the present case are that PW-1 Ashwani Kumar made a complaint before the SSP, Bathinda, wherein he has alleged that he along with his relatives/co-sharers own land measuring 24 bighas 4 biswas bearing khasra No.4905, khewat No.1307/5428 in the area of Patti Jhuti, Paras Ram Nagar, Bathinda. In regard of the CRR No.3058 of 2009 (O&M) -2- above said land, proceedings regarding Girdawri are pending in the different courts. Out of the above land his three widowed aunts having 1/3rd share each. He has two friends namely Baldev Singh son of Gurdial Singh, r/o St. No.9, Bhagat Singh Colony, Rampura and Harnek Singh @ Pappi son of Nihal Singh, r/o Sooch. They stated that it is difficult for the ladies to properly pursue the case in the courts and his father also feels difficulties. The accused allured him and asked him to execute general power of attorney in their favour for pursuing of the above said civil suits and they will also prevent the land grabbers. His father was got arrested in the criminal proceedings under section 107/151 on 29.4.97 by the opposite party. On 30.4.97 they were in fear due to arrest of his father. Both the accused Baldev Singh and Harnek Singh got executed a General Power of Attorney from the petition writer, Bathinda. His father was produced in the Court of SDM Bathinda by the local police Bathinda and he was discharged by the court. Approximately, court time was likely to be over. Hardly 10 minutes remained in the closing of the court, when both the accused asked his father to sign the General Power of Attorney as the court was going to be closed. His father signed the General Power of Attorney as asked by the accused and other share holders/co-sharers in the above said land also signed the Power of Attorney in favour of Baldev Singh. On 5.5.97 accused Harnek Singh @ Pappi and accused Baldev Singh son of Gurdial Singh came to him and stated that Ex. Sarpanch Baldev Singh son of Bhag Singh r/o Village Jhanduke is having good relation with Khiala Cabinet Minister and he can get the Girdawri in their favour. They went to village Jhanduke in the house of said Baldev CRR No.3058 of 2009 (O&M) -3- Singh accused. They introduced him as a friend and they told whole of the story to accused Baldev Singh and accused Baldev Singh assured that he will do their work through Minister Baldev Singh. After two days, Sarpanch Baldev Singh of Jhanduke along with Diwan Singh r/o village Dikh came to his house and assured his father that their work, in regard of khasra Girdawri will be done from Baldev Singh Ex. Ministar. On 9.6.97 Baldev Singh Ex. Sarpanch of Jhanduke, Diwan Singh took him to Chandigarh in the MLA Hostel and they met Baldev Singh Khiala. Ex. Sarpanch Baldev Singh requested the Minister that Ashwani Kumar and his co-sharers having their land at Bathinda and they want to cultivate the land but the other party prevented them to cultivate the land requested to talk on telephone with SSP, Bathinda in regard of cultivating the land. S. Baldev Singh Khiala stated that he will visit at Bathinda within 1-2 days and he will talk with the SSP, in regard of the matter. S. Baldev Singh Khiala Ex. Minister talked on telephone with SSP, Bathinda but he was not present and SSP (Operation) S. Hardeep Singh was present and gave reply that SSP is busy in the recruitment of police at Ladhakothi. S. Baldev Singh Khiala assured that he will meet SSP, Bathinda and best efforts to settle the dispute. On 12-13.6.97 Sarpanch, Harnek Singh, Baldev Singh and Diwan Singh went inside the office of SSP, Bathinda by standing him outside the office. When they return from the Office of SSP, told him that the Reader of the SSP stated that telephone came from the SSP and told him that he will do the work of the village Sarpanch Jhanduke after 1-2 days. On the next day, Sarpanch Baldev Singh, Diwan Singh and Harnek Singh took him at the village Chowke and stated that they talked Zaildar Hardial Singh of CRR No.3058 of 2009 (O&M) -4- village Chowke and they will do the work from Amin Chand by giving him bribe. Hardial Singh went inside the police station and after return, he deposed that he has talked with the SHO and Sh. Amin Chand stated that do not send the owners of the land. After 1-2 days they took him to the village of Sh. Baldev Singh Khiala Ex. Ministar and they came to know that Baldev Singh Khiala had gone to Mansa. They also went to Mansa. Baldev Singh Khiala talked with SSP Bathinda through STD and stated that some persons have forcibly taking the possession of the land and deputed Sarpanch Baldev Singh to inquire about the matter. Thereafter, they came to Bathinda at the residence of SSP. SSP directed to give the application. Application was scribed by Harnek Singh and the same was signed by him and delivered to the Reader of SSP. On 18.6.97 they went to the office of SSP and Diwan Singh inquired on the telephone from the office of SSP. Reader told him that application has been forwarded to the SHO Kotwali and they inquired from the SHO PS Kotwali and he told him that no application has been received from the office of SSP, Bathinda. He has spent Rs.2500/- on the above said persons for their entertainment in the hotels. One person who is belonging to village Jhanduke is employed in the office of SSP and he contacted with him and he told to come on 19.6.97 and he will inquire in the matter. On 21.6.97 he has taken Rs.2000/- from his father on the grounds that the land will be cultivated by the above said persons but they have compelled to spend the money for entertainment on the accused. Thereafter, he has borrowed some amount from his relative for completion of work. When the accused visited office he was made to stand outside the office and they talked with the Officer/official. On CRR No.3058 of 2009 (O&M) -5- 23.6.97 the ownership of the land was attested by the Tehsildar, Bathinda. On 24.6.97 Sarpanch Baldev Singh stated that SHO Amin Chand intends to meet Zaildar Hardial Singh and now he should ready to pay Rs.10,000/- to deliver the same to Amin Chand. On 23.6.97 night to 25.6.97 he was confined at village Jassi Pauwali by Sarpanch. They threatened to bring Rs.10,000/- for paying the same to Amin Chand SHO. He told that he cannot arrange the amount unless they release him. Thereafter, they released him. When he reached at his house and he narrated whole story to his father and demanded Rs.10,000/- from him but his parents were very nervous. On hearing the whole story his father went to Tehsil Office Bathinda and then he gone through the sign board of Mohan Lal Deed Writer Jhanduke and they inquired from him and he stated that Power of Attorney Baldev Singh son of Gurdial Singh R/o Badiala Rampuraphul, have executed the Hibbanama/sale deeds. Thereafter he has moved an application for taking copies of the sale deeds. On receipt of the copies, he came to know that Baldev Singh has executed the Hibbanama/sale deeds from the share of different co- sharers of the land. One sale deed/Hibba has been executed by Baldev Singh on 27.5.97 for land measuring 3 bigha 12 biswa and vide sale deed No.1381 dated 29.5.97 for land measuring 2 bigha 8 biswa and 3rd sale deed No.2129 dated 26.6.97 for land measuring 1 bigha 16 biswa. The above said sale deeds were executed in the name of Harnek Singh son of Nihal Singh and Diwan Singh son of Chand Singh and others. Accused Baldev Singh, Harnek Singh, Diwan Singh played fraud and cheating upon him. He has spent rupees 30-40 thousands for entertaining of accused. Accused have threatened to grab the land CRR No.3058 of 2009 (O&M) -6- measuring 24 bigha 4 biswas. On the basis of complaint present FIR was registered against the accused under Section 420 IPC. From the perusal of the record, it transpires that revisionist- Dewan Singh is the person in whose favour Hibba (gift deed) was executed by the other co-accused pursuant to the power of attorney in question. Perusal of the record further reveals that complainant has lodged an FIR and has also filed civil suit for cancellation of Hibbanama alleging fraud therein. In a civil suit No.76 of 10.9.1997 filed by the complainants for cancellation of gift deed and power of attorney, learned Civil Court vide judgment dated 27.8.2002 has decreed the suit and has held that other co-accused have with intent to play fraud added the word Hibbanama in the power of attorney and have pursuant to the said power of attorney illegally executed Hibbanama in favour of Dewan Singh- revisionist. In appeal, Civil Appeal No.86 of 4.10.2002 decided on 16.3.2004, finding of learned Civil Judge was affirmed. From the judgments passed by the Civil Court as well as of the Appellate Court, it transpires that no finding is recorded against Dewan Singh to the effect that Dewan Singh ever played any fraud in getting the Hibbanama executed in his favour. The only finding of fraud and forgery recorded by the Civil Court is against other accused. Moreover, from the material available on the record no case of fraud or cheating is made out against the revisionist. In the opinion of this Court, since FIR and civil suit were filed at the same time complaining fraud, therefore, findings of the Civil Court in the peculiar facts and circumstances of the present case have binding effect over the criminal case. Since the Civil Courts have not CRR No.3058 of 2009 (O&M) -7- found revisionist guilty of any fraud or cheating in getting the Hibbanama executed in his favour and Hibbanama has been cancelled by the Civil Court, therefore, in the opinion of this Court conviction and sentence passed by both the Courts below against the revisionist is liable to be set aside. Consequently, present revision is allowed. Sentence and conviction passed by both the Courts below under Section 420 IPS against the revisionist is set aside. (Alok Singh) Judge January 12, 2011 R.S.