Crl. Revision No. 278 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 278 of 2006 Date of decision: April 26, 2011 Ram Kumar ...Petitioner Versus State of Haryana ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: None for the petitioner. Mr. Amit Rana, DAG, Haryana. GURDEV SINGH, J. (Oral) This revision has been preferred by the petitioner/accused, Ram Kumar, against the judgment dated 30.1.2006 passed by the Additional Sessions Judge, Jagadhri, vide which he dismissed the appeal preferred by the present accused, Gurdial Singh and Gulab Singh, against the judgment dated 3.12.2003 passed by CJM, Jagadhri, vide which she convicted them for the offences under Sections 420 read with Section 120-B IPC and sentenced them as under:- Section Sentence Fine In default 420 IPC One years ` 500/- One month 120-B IPC Six months ` 500/- Fifteen days The facts, in brief, are that Parmeshwari Devi, complainant Crl. Revision No. 278 of 2006 2 (PW-9) gave written application Ex. PW9/A to the SSP, Yamunanagar, against Gurdial Singh, Ram Kumar and Chajju Ram for registration of a criminal case against them, for cheating her, under Section 420 IPC. She narrated therein that she owns 2-1/4 acres land in village Pipliwala. She had agreed to sell the same in favour of the accused at the rate of Rs. 60,000/- per acre and received Rs. 5,000/- as earnest money. The accused got executed an agreement from her by disclosing her that they have mentioned therein Rs. 5,000/- as earnest money and the date fixed for the execution of the registration of sale deed was 27.10.1992. When she came to Tehsil Complex, Bilaspur, she came to know that the accused by fraud got it scribed in the agreement that the sale of the land was for a total amount of Rs. 60,000/- and that she received Rs. 40,000/- as earnest money. When she told the accused that she would not execute the sale deed for such consideration at any cost, then they told her that they would get a forged sale deed executed and would get the land transferred in their names by way of decree of the court. The application was marked to the SHO, Bilaspur, for inquiry and report. The SHO deputed Kuldeep Singh, ASI (PW-6) to make an inquiry into the contents of the complaint, who after verification of the facts, made his endorsement PW6/2 on that complaint and on the basis thereof, FIR PW6/I was registered against the accused under Section 420 IPC. The investigation was conducted by the same ASI. The photostat copy of the agreement was produced before him by the complainant and the same was taken into possession, vide memo Ex. PW6/3. The ASI collected other relevant documents and recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') . In the course of investigation, Ram Kumar, Gurdial Singh and Crl. Revision No. 278 of 2006 3 Gulab Singh-accused were arrested. After completion of the investigation, challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 420 read with Section 120-B IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, the prosecution examined Fakir Chand (PW-1), Charan Singh (PW-2), Raghunath (PW-3), Mohinder Singh, SI (PW-4), Vishvamitter (PW-5), Kuldeep Singh, ASI (PW-6), Prem Chand (PW-7), Jarnail Singh (PW-8) and Parmeshwari Devi (PW-9). After the prosecution closed its evidence, the accused were examined by the trial court and their statements were recorded under Section 313 of the Code. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence. As already noticed, the appeal was preferred by the accused against their conviction and sentence so recorded by the trial court. In the appeal, an application was filed by the complainant praying therein for acquittal of Gurdial Singh-accused, on the ground that she has compounded the offence with him, as the said accused admits her exclusive owner and claimed no interest or title in the said land. The appellate court recorded the statements of the complainant and that accused, who proved the compromise Ex. CX on record. In view of that compromise and the statements of the parties, Gurdial Singh-accused was acquitted on the ground that the offence stands compounded. The appellate court patently Crl. Revision No. 278 of 2006 4 committed an illegality while passing that order as the offence under Section 420 IPC, as per Section 320 (2) of the Code, is compoundable only with the permission of the Court. Neither any permission was sought nor was granted. However, that order of acquittal has not been challenged before this Court. It was stated before the appellate court by Gurdial Singh- accused that Gulab Singh-accused has already expired and similar statement was made by the complainant. In view of that, the criminal proceedings against that accused were dropped. The appellate court was required to call for the report regarding the death of the deceased from the Officer In-charge of concerned police station and was to pass order only after receipt of such report. The same was not done for the reasons best known to the appellate court. Moreover, the proceedings were not to be dropped against that accused but on the death the accused, the criminal proceedings stand abated. No one has appeared on behalf of the petitioner. Notice was issued to the petitioner, who was duly served through his brother. Even then he has not come present. According to Section 403 of the Code, no party has any right to be heard either personally or by Pleader, before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers hear any party either personally or by pleader. Thus, the revision can well be decided after examining the record. There is no necessity for hearing the petitioner or his counsel. I have heard learned State counsel, who has supported the judgment of the trial court and the appellate court, by referring to the findings recorded therein. After having examined the record, this Court has come to the conclusion that the findings so recorded are based upon misreading of Crl. Revision No. 278 of 2006 5 evidence and suffer from illegality and perversity. It was observed by the trial court in its judgment that the civil court came to the conclusion that no such agreement to sell was executed in favour of the accused by the complainant. Copy of the judgment of the civil court forms part of the record. A specific finding was recorded that the accused were able to prove the agreement but have failed to prove that the same was for consideration. The complainant (PW-9) tried to support the contentions made in the application Ex. PW9/A, while making her statement in the court, but a minute perusal of her statement makes it clear that she has not come out with correct facts before the Court. The complainant never disclosed the name of the deed writer, who scribed the agreement. The prosecution examined one Fakir Chand (PW1), who made a statement to the effect that he received Rs. 5,000/-, which was given to him by Ram Kumar, and he had further delivered that amount to Parmeshwari Devi. During his cross- examination, he stated that the agreement Ex. DA was not scribed by him. In that case, he had no business to receive any such amount of Rs. 5,000/- from Ram Kumar and to further deliver the same to the complainant. He has gone to the extent of deposing that he cannot identify the accused, who were present in the Court when his statement was recorded. He has totally contradicted the complainant by deposing that he was told by the complainant that Rs. 40,000/- was written in the agreement, whereas she had been given Rs. 5000/-. It means that fact had come to the notice of the complainant at the time of the execution of the agreement itself. On the same aspect, it was stated by the complainant (PW-9) that she had come to know about this forgery after 4-5 months of the execution of the agreement. She also stated that on the date fixed for the execution of the sale, she had Crl. Revision No. 278 of 2006 6 come to the court premises for execution of the same. As per the contents of the agreement, Ex. DA the sale deed was to be executed on 27.10.1992. This agreement is dated 28.12.1991. Thus, according to the complainant, she had come to know about the forgery somewhere in the months of May/June, 1992. If there was any truth in the story put forward by her, there was no question of her coming present in the court premises on 27.10.1992 for executing the sale deed. She kept silent till 16.12.1993 when the present application was moved. After she failed to execute the sale deed, the accused filed civil suit for the specific performance of the agreement. However, the matter is still sub-judice as the appeal is pending against the judgment passed by the trial court. As already observed, the civil court has recorded a finding to the effect that the agreement was duly executed by the complainant in favour of the accused. This agreement purports to have been attested by Sardha Ram, Sarpanch and Raghuvath, Numbardar. The prosecution itself examined Raghunath as PW-3. He deposed that the complainant agreed to sell the land in favour of her nephews for a sum of Rs. 60,000/- and had received Rs. 40,000/- in his presence as earnest money and all the terms and conditions of the sale were incorporated in the agreement. No effort was made by the prosecution for getting that witness declared hostile and no permission was sought to cross-examine him in order to discredit him. When the prosecution itself is relying on the statement of that witness, it cannot be said that there is any truth in the version put forwarded by the complainant, as she stands contradicted and falsified by the statement of this witness and he is the best witness to depose at to what transaction was entered between the parties; what were the terms of the agreement; for how Crl. Revision No. 278 of 2006 7 much amount the complainant agreed to sell the land in dispute and how much amount was received by her as earnest money. This witness has duly proved the execution of the agreement and according to him the contents thereof are correct. According to Section 91 of the Evidence Act, 1872 when the terms of a contract have been reduced in the form of a document, no evidence shall be given in proof of the terms of such contract, except the document itself. Section 92 of the Evidence Act excludes the evidence of oral agreement for contradicting, adding to or subtracting from the contents of that document. There are some exceptions to that general rules which are incorporated in that section itself. Therefore, once this agreement in writing is proved, the oral evidence produced by the prosecution contradicting the contents thereof is not admissible. In these circumstances, the conviction and sentence so recorded by the trial court and upheld by the appellate court cannot be sustained. The revision is accepted accordingly. The conviction and sentence of the petitioner/accused is set aside. The fine, if already deposited, be refunded. April 26, 2011 (GURDEV SINGH ) prem JUDGE Note:- Whether to be referred to reporter No