IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 166 of 1999 Decided on June 29, 2010 _______________________________________________________ State of H.P. …Appellant Versus Rattan Chand and Others. …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, with Mr.J.S.Rana, Assistant Advocate General. For respondents: Mr. Ramakant Sharma, with Mr. Malay, Nos. 1, 2 and 6 Advocates. Justice R.B. Misra,J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 7.8.1998, passed by the Learned Chief Judicial Magistrate, Solan, H.P. in Criminal Case No.1/2 of 1992, under Sections 420, 468, 467, 471 and 406 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. It is brought to notice of this Court that out of respondents/accused No. 3 Ilam Deen, respondent No.4 Babu Ram and respondent No.5 Sadhu Ram have died. 3. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. As per prosecution story, it appears that one Arvind Gupta and Surinder Sethi made a complaint Ex.PW.6/A alleging that the accused persons, alongwith one Thakur 2 Sain Negi, allegedly mis-appropriated the property belonging to Parvatiya Adam Jati Sewak Sangh (in short called as ‘Sangh’) having its Head Quarter at Salogra. This institution is stated to be affiliated to Bharatiya Adimjati Sewak Sangh Delhi and had been rendering services for downtrodden (Dalit) in consonance to its constitution and rules regarding the management and disposal of the property belonging to the said ‘Sangh’. Allegedly, the accused persons were the members and office bearers of the said ‘Sangh’. Accordingly, an FIR Ex.PW.7/A was registered at Police Station, Solan, in reference to resolution No. 1 dated 19.4.1983 vide which one bigha of land belonging to the ‘Sangh’ was proposed to be gifted in favour of Urmila Chopra and vide resolution No.5 dated 30.7.1985 the said land was decided to be sold-off. Vide resolution No.2 dated 27.11.1985, ownership of the land of ‘Sangh’ was decided to be changed in favour of Dharam Dev Shashtri. Vide another resolution No.2 dated 23.3.1986, a hotel was decided to be constructed in which the share of few people was proposed to be taken and vide resolution No.7 dated 27.9.1987, it was decided that the said land would be sold by accused Rattan Rozey and Roop Singh Chauhan in order to raise funds. 4. The members of the said ‘Sangh’ gifted 494 Sq.meters of land to Urmila Chopra out of Khasra No.1163/1 and subsequently another 300 Sq. meters of land was gifted to Urmila Chopra out of Khasra No. 1163/2. The accused persons had also sold out land measuring 254 Sq. meters in favour of Thakur Sain Negi for a consideration of Rs.15748/- vide sale deed dated 22.12.1987. Out of the land comprised in Khasra No.1188, measuring 368 Sq. meters, 3 was sold in favour of Babu Ram on the basis of pronote and another piece of land measuring 225 Sq.meters out of Khasra No. 1163/6 was sold to said Babu Ram vide pronote for Rs.13,656/-. Land measuring 210 Sq.meters was sold to Bimla wife of Babu Ram. The main allegations made by the complainant were that the land was sold in favour of the aforesaid persons at a much lower rate than the prevailing market rate, and thus it was alleged that the accused persons had mis-appropriated the property of the ‘Sangh’. An inquiry was made by the then C.D.P.O. Dharampur, namely, Prem Dass Chaudhary, who prepared the report mark ‘P’ and noticed the alleged irregularities in the sale of the said land by the members of the ‘Sangh’. 5. During the investigation, different letters and copies of resolutions were taken into custody, as has been mentioned in paragraph of the Trial Court’s judgment. 6. After investigation, accused-respondent No.3 was charged for the alleged offences as mentioned above. In order to prove its case, the prosecution has examined as many as 18 prosecution witnesses. Whereas, the accused to their statements under section 313 of Cr.P.C, have denied the prosecution case. 7. From the perusal of prosecution witnesses and material on record, it appears that both the complainants, namely, Arvind Gupta and Surinder Sethi were not the members of the ‘Sangh’ and no circular or prevailing rate list of sale of land in the area, neither was available nor was brought on record. In absence of such rate list, it is difficult to know at what rate the said land could have been sold out in order to gain maximum fund/money. The particular land in question was not put to auction in order to get the maximum price. We also 4 notice that a land, which was purported to be gifted / sold to Urmila Chopra, was in peculiar facts and circumstances and on account of sudden demise of her husband. It is nobody’s case that a complaint was made that the aforesaid land was transferred to any particular person out of favour or illegal money was involved in the transaction or any illegal gratification to the officials of the ‘Sangh’ was offered while transferring the land in question to the person concerned. 8. PW.6 Arvind Gupta has simply stated that the accused persons being the members of ‘Sangh’, gifted / sold the property with a view to cause loss to the ‘Sangh’ at a lower rate than the prevailing rate in the market. Different exhibits, regarding the sale of different land to different persons namely Thakur Sain Negi, Babu Ram Sharma and Smt. Urmila Devi (as mentioned in the paragraph of the judgment), indicative that the land was sold at a lower rate in absence of any prescribed rate of sale for land. 9. ‘Sangh’ was endeavouring to raise funds in consonance to its constitution, rules and norms Ex.PW.13/C, which do not indicate that members of the ‘Sangh’ were prevented from donating the part of the land to any person or ‘Sangh’ or its office bearers were restrained to sell the portion of land thereof, to raise funds for smooth functioning of the activities of the ‘Sangh’. The prosecution witnesses, however, failed to bring any material on record to indicate about the transfer of above mentioned land having been made dishonestly with a view to mis-appropriate money or such transfer / sale was made with an intention to dispose of the property of the ‘Sangh’ in derogation to the rules and norms of the ‘Sangh’ or with an ulterior motive. 5 10. If PW.9 Vidya Sagar, had offered higher rate to purchase the land of the ‘Sangh’ and had also given Rs.1000/- as an advance money, then, in cross-examination, PW.9 was to be consistent. Whereas, PW.9 has not indicated that any document or agreement was executed that he was willing to offer higher rate. Nothing was brought to show that advance money was offered by him to get the land at the rate of Rs.80,000/- per bigha. In such a situation, the sole testimony of PW.9 cannot be relied upon to strengthen the case of the prosecution that the land could have been sold at a higher rate. 11. PW.14, Prem Dass Chaudhary, Child Development Officer (C.D.P.O., Dharampur) was entrusted with the inquiry report and had prepared the report mark ‘P’, whereby some foul play and irregularities were said to have been indicated, however, it was not proved on record. On analysis of this report, learned Trial Court has also not found any incriminating material from this report regarding cheating or irregularity committed while transferring the land in question to the aforesaid persons mentioned as accused. 12. PW.1, Luxmi Dutt Sharma, has stated that two registers Ex.PA and Ex.PB containing the proceedings of the ‘Sangh’, were taken into possession vide Ex.PW.1/A. Whereas, PW.2 Roshan Lal has stated that one Babu Ram had produced to the police few letters, the reference of which was mentioned in Fard Ex.PW.2/A. Similarly, in presence of PW.3 Baldev, an application and carbon copies of the letters were taken into custody vide Fard Ex.PW.3/A. Similarly, in presence of PW.4 P.T. Sukhane, the then Office Secretary, PW.4/B, Ex.PW.4/C to Ex.PW.4/F and Ex.PW.4/H to Ex. PW.4/K were taken into custody. The resolution Ex.PW.4/I dated 27.11.1985 indicated that the permission to be taken by Municipal Committee in respect of 6 the cutting of the trees standing in the land of the ‘Sangh’ was also taken into possession in order to raise funds. By resolution Ex.PW.4/J Executive Committee of the ‘Sangh’ had proposed to construct a hotel and Ex.PW.4/K showing that Roop Singh Chauhan and Rattan Chand Rojhe were authorized to get the land of ‘Sangh’ to be sold / signed by them. 13. The aforesaid resolutions and registers Ex. PA and Ex. PB regarding proceedings of the said ‘Sangh’, are not indicating that the office bearers of ‘Sangh’ in conspiracy and by way of fraudulent means had transferred or sold the land in question to persons unauthorizedly by passing any resolution of Executive Committee of ‘Sangh’. As the steps were taken in reference to the resolution deliberated, discussed and approved by the Executive Committee of the said ‘Sangh’, which, as such, goes to negate the criminal intent or the fraudulent or dishonest intention of the members of the said ‘Sangh’. 14. The testimonies of other prosecution witnesses have also not indicated that the accused persons had mis-appropriated the property of the ‘Sangh’. 15. From the scrutiny of the prosecution witnesses and material on record, it may be noted that transfer or sale of land in question to the different persons, referred in the impugned judgment, were in consonance to the resolution passed by the ‘Sangh’ and in terms of authorization of the Executive Committee and in absence of any material on record, that the particular land was sold out or transferred at a lower rate, it cannot be inferred that the said transaction was in derogation to the provisions of Sections 420 and 406 of the Indian Penal Code. Further, nothing has been brought on 7 record by the prosecution to show that the conspiracy and misappropriation was made by the accused persons except that they have bonafidely acted upon in terms of the resolution prevailing at that time regarding selling the land in question at the rate approved by the ‘Sangh’ through different resolutions. From the conduct of office bearers, officials and members of the ‘Sangh’, ingredients of cheating as envisaged under Section 415 IPC were also not revealed. 16. From the perusal of the statements of prosecution witnesses and material on record, we find that the prosecution had failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings and conclusion arrived at by learned Chief Judicial Magistrate. 17. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. (Justice R.B. Misra), Judge. June 29, 2010 (Justice V.K. Sharma) (Purohit) Judge