IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 268 of 2004 Reserved on: 19.05.2011 Date of Decision: 14.06.2011 Jasbir Kaur …Appellant. Versus. State of H.P. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. C.N.Singh, Advocate. For the Respondent: Mr. Vivek Thakur, Addl. A.G. Deepak Gupta, J. 1. This appeal by Smt. Jasbir Kaur is directed against the judgement dated 7.6.2001 delivered by the learned Special Judge, Solan whereby he convicted Shri Ramesh Kumar Chaudhary, Naib Tehsildar, of having committed offences punishable under Section 120-B of the Indian Penal Code read with Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act and convicted the present appellant of having committed offences punishable under Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of the I.P.C. 2 2. The present appellant was directed to undergo simple imprisonment for one year and to pay a fine of Rs.1000/- and in default of payment of fine to undergo simple imprisonment for a further period of three months. 3. It would be pertinent to mention that Ramesh Kumar Chaudhary had also filed an appeal but he died during the pendency of the appeal and his appeal has been disposed of as having abated. 4. The brief facts relevant for the decision of the case are that one Mr. Wajibudeen was owner of property known as Riaz Manzil Kothi at Kasauli comprised in Khasra No. 33 and 89/34. On partition of the country Shri Waijibudeen migrated to Pakistan and his property was declared to be evacuee property and made part of the compensation and rehabilitation pool. The total area of this property was 7-1-18 bighas. From the record, it is apparent that the property consisted of a main Kothi, some small structures and other agricultural land. The property was divided into various parts and separate numbers were given to the property by the evacuee authorities. Three parts of this property bearing property Nos. 179, 180 and 180-A were put to public auction on 28.09.1959. Accused Jasbir Kaur was 3 the highest bidder and her bid was of Rs.12,300/- This bid was much below the reserve price of Rs.18,365/- but was finally accepted. It is apparent that after the acceptance and approval of the bid a sum of Rs.1230/- remained unpaid. According to the accused, she infact paid the entire bid money but the department had lost some challan forms. Be that as it may, the fact is that in the year 1984 the accused deposited a sum of Rs.1230/-. The sale certificate was issued on 4.2.1988 and sent to Jasbir Kaur, which was received back in the department undelivered. 5. In June 1993 a legal notice was sent to Tehsildar (Sales)-cum-Managing Officer by one Shri O.P.Dhall, Advocate, on behalf of the accused Jasbir Kaur that despite Jasbir Kaur having deposited the entire amount of money the sale certificate had not been issued. This notice was replied by accused Naib Tehsildar (Sales)- cum-Managing Officer Ramesh Kumar Chaudhary but in the reply he has stated that sale certificate had been issued on 4.2.1988 but had been received back undelivered. He further informed that Jasbir Kaur could collect the certified copy from him. On 3.8.1993 another communication was addressed by accused Ramesh Kumar Chaudhary that as per sale certificate 4 dated 4.2.1988 issued in favour of Jasbir Kaur, 1432 square yards of properties bearing No. 179, 180 and 180-A be mutated in favour of accused Jasbir Kaur. Accused Sansar Singh was posted as Tehsildar, Kasauli at that time. A copy of the aforesaid letter was endorsed to Patwari Halqua Kasauli Prakash Chand. Thereafter, a Tatima of 1432 square yards was prepared and mutation was entered and attested in favour of Jasbir Kaur with regard to 1432 square yards of area in her presence. It is alleged that lateron this mutation was tampered with by accused Sansar Singh and accused Prakash Chand and the entire area of Riaz Manzil comprised in Khasra Nos. 33 and 89/34 measuring 7 bighas 1 biswa and 18 biswansis was shown to have been mutated in favour of Jasbir Kaur. 6. One Kuldeep Singh allegedly acting on behalf of the accused Jasbir Kaur filed two applications one dated 23.7.1993 and another dated 22.9.1993. In these applications it was alleged that the total area of the estate was more than the actual area sold to Jasbir Kaur in the auction and a request was made that the remaining land be also allotted to her on payment of the price prevailing in the year 1959. These two applications were dealt with by accused Ramesh Kumar 5 Chaudhary in his capacity as Naib Tehsildar(Sales)-cum- Managing Officer (Sales). He dismissed both the applications and the order passed on these applications was conveyed to Jasbir Kaur vide letter dated 12.10.1993. 7. More than one year later on 20.10.1994 Jasbir Kaur made another application in which she now claimed that she had purchased the entire estate comprised in Khasra No. 33 and 89/34, the total area of which was 7- 1-18 bighas and had been in her possession. She submitted that the sale certificate had wrongly been received by her attorney in the year 1993 and prayed that the sale certificate be issued in respect of entire estate of Riaz Manzil. On the very same day, accused Ramesh Kumar Chaudhary acting as Naib Tehsildar (Sales)-cum-Managing Officer passed an order directing the Kanungo to report and submit the file on the spot on 22nd October, 1994 i.e. two days later. Ramesh Kumar Chaudhary visited Kasauli on 22.10.1994, recorded the statement of Jasbir Kaur on that very day and prepared a report on 24.10.1994 that Jasbir Kaur was in possession of the entire area of Khasra No. 33 and 34/89 measuring 7-1-18 bighas and therefore, the certificate dated 4.2.1998 showing the sale of 1432 6 square yards needed to be corrected by issuance of a corrigendum. Based on this report he passed an order on the same day to certify that Jasbir Kaur had purchased 7-1-18 bighas in place of 1432 square yards as earlier recorded. Formal corrigendum was issued on 28.10.1994 i.e. within eight days. 8. According to the prosecution the orders dated 24.10.1994 and corrigendum dated 28.10.1994 were issued with a view to giving wrongful and undue benefit to the accused which resulted in loss to the State of Himachal Pradesh. According to the prosecution the accused hatched a conspiracy for this purpose and cheated the State Government. The accused were charged with having committed offences of conspiracy, forgery, cheating and offence under the Prevention of Corruption Act. Two of the accused were acquitted and two were convicted as detailed here-in-above. Hence, this appeal by the accused. 9. The appellant submitted that she had purchased the entire Riaz Manzil. The main ground raised by the appellant is that the prosecution has not placed on record any document pertaining to the public auction conducted in the year 1959 when the appellant purchased the property and there is nothing on record 7 to show that when the auction took place only 1432 square yards was put to auction. It is further alleged that there is no act of the appellant which would show that she had entered into a conspiracy. Another ground raised by her is that no reliance can be placed on the valuation report. 10. It would be pertinent to mention that what was sold is admittedly property bearing evacuee Nos. 179, 180 and 180-A. These were put to auction on 28.09.1959 and the total reserve price was of Rs.18,365/- but the bid of the accused was for Rs.12,300/-. This fact is proved by valuation form Ext.P-31 pertaining to property No.179, Ext.P-32 pertaining to property No. 180 and Ext. P-33 pertaining to property No. 180-A. However, accused claimed that she purchased the entire Riaz Manzil. Though the appellant claims that she had paid the entire bid money in 1959 itself the fact remains that Rs.1230 out of this was deposited by her on 27.08.1984 and thereafter intimation of this fact was given to the Naib Tehsildar (Sales)-cum-Managing Officer (Sales) vide letter dated 27.5.1985 Ext.P-21. In the notice sent by O.P.Dhall, Advocate, on behalf of the appellant it is also mentioned that Rs.1230/- was deposited on 27.8.1984. 8 11. After deposit of the amount of Rs.1230/- sale certificate was issued wherein property was shown to be only 1432 square yards. This sale certificate was sent to the accused Jasbir Kaur but received back undelivered. 12. Thereafter, Jasbir Kaur got notice issued that sale certificate be issued and was informed that in fact the sale certificate had already been issued and she could now obtain a duplicate sale certificate. Thereafter, mutation was entered, attested and sanctioned in respect of 1432 square yards i.e. 1-12 bigha out of the total area of 7-1-18 bighas. Mutation is Ext.P-61 in Parat Sarkar Ext.P-60. 13. Two applications Ext.P-9 and P-10 were allegedly sent on behalf of Jasbir Kaur by one Shri Kuldeep Singh. In these applications dated 22.9.1993 and 23.7.1993 it was prayed that the remaining land be sold to Jasbir Kaur on payment of the price prevailing in the year 1959. On 12.10.1993 accused Ramesh Kumar Chaudhary passed an order Ext.P-13 rejecting these applications. According to Jasbir Kaur these applications were never made on her behalf. Thereafter on 20.10.1994 she submitted another application Ext.P-44 to accused Ramesh Kumar 9 Chaudhary claiming that she had purchased the entire property known as Riaz Manzil and sale certificate be issued. As stated above, within eight days not only reports were obtained from Kanungo or Patwari but spot visited and a corrigendum issued whereby the sale certificate was corrected and entire property was shown to have been sold to the accused Jasbir Kaur. Though Jasbir Kaur denies having ever authorized Shri Kuldeep Singh to send the earlier applications, interestingly the corrigendum was received on behalf of Jasbir Kaur by none else but Shri Kuldeep Singh. The learned trial Court has observed that the signatures below the writing regarding receipt of copy is similar to the signatures on applications Ext.P-9 and Ext. P-10 which was moved in the year 1993. Therefore, the learned trial Court came to the conclusion that Jasbir Kaur could not disown the letters written by Kuldeep Singh. It also stands proved that the mutation order dated 31.1.1994 Ext.P-61 was passed in the presence of Jasbir Kaur wherein mutation has been attested only in respect of 1432 square yards. Relying upon the aforesaid facts, the learned trial Court came to the conclusion that accused Ramesh Kumar Chaudhary knew fully well that original sale certificate was issued in favour of Jasbir 10 Kaur only in respect of 1432 square yards. He had rejected the request of Jasbir Kaur for transfer of additional area on payment of price prevailing in the year 1959. Therefore, Ramesh Kumar Chaudhary should have known that Jasbir Kaur was aware of the fact that she had not purchased the entire Riaz Manzil but only 1432 square yards. He while rejecting the reports should have been aware of the valuation forms Ext.P-31, Ext.P-32 and Ext.P-33, which are part of the file pertaining to the auction of the property in question. 14. Ext.P-31 is the valuation form for the property bearing evacuee No. 179. Its area is recorded as 1155 square yards and the value of the property has been fixed @ Re.1/- per square yard. Ext.P-32 pertains to property No.180 and the area is recorded as 103 square yards and the valuation has been made @ Re.1/- per square yard. The third valuation report is Ext.P-33 in which the property 180-A is shown to measure 174 square yards and its value has been shown to be at Re.1 per square yard. The value of the building(s) has also been assessed and the total value of the land and building works out to Rs.18,365/-. 15. There is no manner of doubt in my mind that accused Ramesh Kumar Chaudhary should not have 11 passed the order dated 21.10.1994 or issued the corrigendum on 28.10.1994 (Ext.P-16 and Ext.P-17) and therefore, the learned trail Court was justified in holding him guilty. However, it is not necessary to give any finding on these issues since Shri Ramesh Kumar Chaudhary is unfortunately dead. The question is whether accused Jasbir Kaur can be held guilty of having committed any criminal offence. 16. It stands admitted by the accused that she was residing in the United States of America and her property was being looked after by various persons. However, on record there is no material to show that Kuldeep Singh was ever appointed as her power of attorney. Can she be held criminally liable for any application which may have been sent on her behalf by Kuldeep Singh? Even if we assume that he was her care taker or representative, the prosecution should have led evidence to show that accused Jasbir Kaur had specifically authorized Kuldeep Singh to file such an application. 17. From the material on record especially the valuation reports, I am convinced that what was sold to Jasbir Kaur was only evacuee property No. 179, 180 and 180- A measuring 1432 square yards. There is no denial to 12 the fact that these documents are part of the official record and have been in existence for more than 30 years. There is presumption of truth attached to these documents. A perusal of the record also shows that before accepting the bid a conscious decision was taken to accept the bid even though it was less than the reserve price. Whatever may have been the impression of Jasbir Kaur, the fact is that the property sold to her was only 1432 square yards and nothing more. She could not have claimed ownership over any other portion of the land. 18. Having held that the petitioner was not the owner of the remaining portion, can she be convicted of having committed offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of the I.P.C? In my view the answer has to be in the negative. The accused Jasbir Kaur has been acquitted of having committed offences punishable under Sections 420, 467, 468 and 471 I.P.C. The only substantial offence in which she has been convicted is 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of the I.P.C. It is true, as observed by me above, that the manner in which Ramesh Kumar Chaudhary acted from 20.10.1994 to 13 28.10.1994 clearly indicates that something was amiss. He suddenly forgot what he had decided earlier and mutated the entire property in favour of the accused. The accused may have made a wrong claim but the fact is that an authority vested with quasi-judicial powers decided that claim. Merely making a false or wrong claim would not make the appellant liable for conviction under Section 13(2) of the Prevention of Corruption Act, 1988. If her claim was wrong it should have been rejected. Mere acceptance of her wrong claim by itself will not mean that there was any conspiracy between the appellant and Ramesh Kumar Chaudhary. The case against Ramesh Kumar Chaudhary was much stronger since he was obviously aware of what had transpired earlier. Though according to the appellant she is not concerned with what was written by Kuldeep Singh it is obvious that he was looking after her property. The prosecution has, however, failed to directly link her with the letters written by Kuldeep Singh. Though the manner in which the corrigendum was issued may be highly suspicious and may indicate that something was wrong, suspicion can never take the place of proof. 19. Therefore, though I am convinced that a false claim was set up by Jasbir Kaur with regard to the remaining 14 property but it cannot be said that she has committed any criminal offence. Accordingly, the judgement of the learned trial Court convicting Jasbir Kaur is set-aside and she is acquitted. The bail bonds furnished by the appellant are ordered to be discharged. 14th June, 2011 ( Deepak Gupta ) ™ Judge.