Civil Writ Petition No. 3669 of 1985 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 3669 of 1985 Date of Decision: 14.12.2010 Smt. Kuldip Kaur …Petitioner Versus Deputy Secretary (Appeals) and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Rahul Sharma, Advocate for the petitioner. Mr. G.S. Attariwala, Additional Advocate General, Punjab, for respondents No.1 and 2. Mr. Harit Sharma, Advocate for respondent No.3. None for respondents No.4 and 5. Kanwaljit Singh Ahluwalia, J. (Oral) The present writ petition has been filed by Kuldip Kaur widow of Gurdev Singh who was the member of respondent No.3-Rasanheri Co-operative Agricultural Service Society, Rasanheri (hereinafter referred to as “the Society”). It is not disputed that she was granted loan to the tune of ` 1,500 vide resolution No. 38 dated 6.7.1972. The Arbitrator, vide his award dated 16.12.1980, came to the conclusion that as per page 75 of the Cash book of the Society, only ` 1,500 was disbursed as loan to the petitioner but subsequently, its office bearers Civil Writ Petition No. 3669 of 1985 2 had played a fraud and reflected in the books that the amount of loan as ` 16,500 had been disbursed and paid to the petitioner. When the forgery came into light, the case FIR No. 133 dated 30.9.1980 was registered at Police Station Kharar, under Sections 406, 408 and 467 IPC against Kartar Singh, Secretary and Baljeet Singh, Cashier. Along with the present writ petition, a copy of judgment dated 31.1.1984 (Annexure P3), passed by the Judicial Magistrate Ist Class, Kharar, has been annexed, wherein the following facts have been noticed:- “...The above mentioned case was registered on the complaint Ex.PA of the Assistant Registrar Co- operative Societies through FIR Ex.PW7 Kuldip Kaur was given ` 1500 whereas the amount has been shown in the record of ` 16500. Samund Singh was given ` 500 whereas the amount has been shown as ` 1500. Surmukh Singh was not given any loan nor he applied for the same but loan of ` 1000 has been shown given to him in the record. In this way, both the accused embezzled ` 17000. Inspector Lok Ram took up the investigation. He took into possession the record, i.e. Rokar Behi Ex.PI Khata Bahi Ex.P4 and P6 Karvai register Ex.P3 and Tamasak Ex.P8. After completion of the necessary investigation, the accused were challaned...” The Criminal Court, vide its judgment (Annexure P3), held Civil Writ Petition No. 3669 of 1985 3 Kartar Singh and Baljeet Singh guilty of various offences and returned the following findings:- “...It has come in the evidence of Amir Singh Inspector that the entries are in the hand of Kartar Singh accused. Sh. Pal Singh, Sub Inspector, PW9 has deposed that on the pass book Ex.PW3/9 of Samund Singh the entries were made by Kartar Singh accused Ex.PW3/10 and Ex.PW3/11. He has also proved the copy of D form Ex.PW8/A. Copy of resolution Ex.PW8/B. When the record was in the custody of Kartar Singh accused, it is for him to prove that the entries are not in his hand. The prosecution has proved by its evidence that the entries in the record and overwritings are of the hand of Kartar Singh accused. The entrustment has been proved by the prosecution that Baljit Singh accused withdraw the amount of ` 54750 through D form from the bank by signing the bank record. It is for the accused to account for the amount. So it is clear that accused Baljit Singh and Kartar Singh both have embezzled the amount in conspiring with each other and in pursuance of that Kartar Singh forged the entries in connivance with Baljit Singh accused. From the above discussion, I am of the view that the prosecution has been able to prove its Civil Writ Petition No. 3669 of 1985 4 case beyond reasonable doubt against the accused. Accordingly, I hold accused Baljit Singh guilty u/s 408 IPC, Kartar Singh accused u/s 408 IPC read with 120B IPC further accused Kartar Singh u/s 467 IPC and Baljit Singh accused u/s 467 IPC read with120-B IPC and convict them thereunder. The accused be heard on the question of sentence...” Learned counsel for the petitioner has submitted that the petitioner was a poor lady, who had been cheated by the officials of the Society. She was advanced a loan to the tune of ` 15,000 for purchase of Bullock Cart, whereas the fraud and forgery was committed by the officials of the Society, who had reflected in the record that the loan of ` 16,500/- had been disbursed to the petitioner for purchase of a Taxi. He further submitted that the amount of ` 1,5000 was embezzled by the officials of the Society and hence liability of the petitioner cannot be determined more than ` 1,500 and interest which is payable thereupon. He further contended that the Arbitrator, in order to absolve the officials of their misconduct, had recorded in the award that the petitioner along with the accused had unanimously agreed to contribute the amount of loan along with the interest and she was fastened with the liability of ` 15,307.39 as on 16.12.2008. Learned counsel further submitted that immediately thereafter, the award (Annexure P1), passed by the Arbitrator, was challenged by the petitioner by filing an appeal. The Appellate Authority, vide his order dated 19.12.1983 (Annexure P2), had dismissed the appeal stating that it was the consent decree. Thereafter, the petitioner had filed the revision petition. The Revisional Authority, Civil Writ Petition No. 3669 of 1985 5 vide his order dated 14.5.1985 (Annexure P4), had upheld the award (Annexure P1) on the ground that it amounts to a consent decree. The Revisional Authority further recorded that the award (Annexure P1) was based upon the compromise, which was signed by the petitioner and her son. The following finding, recorded by the Revisional Authority, is required to be noticed:- “...I am inclined to agree with the pleadings of the counsel for Respondent Nos.3 and 4. I have also seen the original compromise which has been produced before me today. It leaves no doubt in my mind that the compromise was entered into by the petitioner with open eyes. The compromise is not signed only by the petitioner and Respondents Nos.3 and 4 but also by her son and it has been attested by the Arbitrator. The son of the petitioner has signed in English and he appears to be a literate person. In case the compromise had not been struck by the parties then the petitioner could have easily approached the Appellate Authority. But the appeal against the compromise was filed on 16.5.83. The appeal was dismissed on 19.12.1983 and the petitioner filed the present Revision Petition on 23.4.84. This gives credence to the stand taken by the counsel for Respondent No.3 that the petitioner was encouraged to file the present revision after the judgment in criminal case on 31.1.1984...” Civil Writ Petition No. 3669 of 1985 6 Learned counsel for the petitioner submitted that the petitioner was cheated and due to her deposition the accused were convicted. Hence, the compromise, if any, was against the public policy. He further urged that the Criminal Court had delivered the judgment on 31.1.1984 and the petitioner, while appearing as PW6, had deposed against respondents No.4 and 5. Therefore, there is no reason for the petitioner to enter into compromise with respondents No.4 and 5. Thus, the award dated 16.12.1980 (Annexure P1), which was passed before the delivery of judgment by the Criminal Court, should not be given any credence. A Division Bench of this Court, while admitting the present writ petition, had passed the following order on 30.7.1985:- “...Notice. The petitioner shall pay ` 1500 with stipulated interest till the date of payment. It is alleged that the payment has already been made. If the payment has been made, the recovery of the rest of the amount shall remain stayed from the petitioner till further orders...” In the year 1972, a sum of ` 1,500 was disbursed to the petitioner. A period of about 38 years is going to elapse. After 38 years, to ask the petitioner to pay interest at the rate of 13.5% per annum will be highly unjust. In Central Bank of India v. Ravindra 2002(1) ISJ (Banking) 1 (Supreme Court), which was relied by the Single Judge of this Court in Laxmi Narain & Others v. State Bank of India 2010 (2) BC 158 wherein it was held that after the passing of decree, the Judgment Debtor can only be charged interest at the rate of 6% per Civil Writ Petition No. 3669 of 1985 7 annum with half yearly rests. This is an unusual case having its own peculiar facts. Here a widow was cheated and became a victim of fraud and forgery played by the officials of the Society. Only ` 1,500 was paid to the petitioner, however, in the record, it was reflected that a sum of ` 16,500 was disbursed. The award (Annexure P1) was passed by the Arbitrator because of the compromise. She has been asked to equally share the liability of the accused who have been convicted by the Criminal Court on the statement made by the petitioner. Even learned counsel for the petitioner is not aware as to whether the petitioner is alive or not. The present writ petition was admitted in the year 1985. The same is taken up for disposal after 25 years. Thus, this Court is of the view that the sordid saga of hardships, of fraud and forgery of which the petitioner was the victim should be buried gracefully. Taking totality of the circumstances into consideration, liability of the petitioner is waived off especially when in pursuance of the order dated 30.7.1985, passed by the Division Bench of this Court, she had deposited the amount of ` 1,500. This Court should also notice that the Society has incurred more expenses on the legal remuneration than the amount sought to be recovered from the petitioner. The Society should also act with magnanimity towards the lady who was the victim of fraud and forgery played by its officials. (Kanwaljit Singh Ahluwalia) Judge December 14, 2010 “DK”