Criminal Revision No.2224 of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.2224 of 2002 Date of Decision: 04 - 6 - 2010 Amar Singh and others .....Petitioner v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.R.N.Kush, Advocate for the petitioners. Mr.Manish Deswal, DAG, Haryana for the respondent – State. *** KANWALJIT SINGH AHLUWALIA, J. The present revision petition has been preferred by Amar Singh, Maman, Gulab and Rohtash. They all are residents of Village Badyian Brahmnan, Tehsil and District Hisar. Counsel for the petitioners had placed on record a copy of death certificate of petitioner No.1 - Amar Singh showing his date of death as 19.12.2009 and vide a separate order dated 4.5.2010, Chief Judicial Magistrate, Hisar had been ordered to hold an enquiry regarding the factum of death of Amar Singh. In pursuance of order dated 4.5.2010, the revision petition qua Amar Singh had already abated. If found otherwise, the Registry will revive the revision petition qua him. Criminal Revision No.2224 of 2002 [2] Criminal Misc. No.32155 of 2009 filed on 6.7.2009 was also allowed vide order dated 4.5.2010 and the documents annexed therewith as Annexures P7 and P9 were taken on record as additional evidence. The above said petitioners were named as accused along with one Smt.Bhula widow of Har Lal, in a case FIR No.206 dated 25.8.1985 registered at Police Station Sadar Hisar under Sections 420, 468, 471,419 and 120-B IPC. The Court of Judicial Magistrate Ist Class, Hisar vide judgment dated 9.2.1996 held all the petitioners along with Smt.Bhula guilty of offence under Sections 420, 468 and 471 IPC and vide a separate order dated 10.2.1996, they were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- under Section 420 IPC. They were further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- under Section 468 IPC. Similarly, they were also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- for offence under Section 471 IPC. All the sentences were ordered to run concurrently. In default of payment of fine, they were ordered to undergo simple imprisonment for three months. Aggrieved against the same, all the petitioners along with Smt.Bhula had filed an appeal. The Appellate Court dismissed the same, however, it released Smt.Bhula on probation and reduced the sentence of the present petitioners on all counts to eight months rigorous imprisonment. Hence, the present revision petition. Raghunath complainant PW4 submitted an application to the police stating that accused Amar Singh, Gulab and Maman had mortgaged Criminal Revision No.2224 of 2002 [3] the land to Het Ram @ Net Ram, father of Raghunath. His father had expired about 30 years ago. He succeeded to his property. Since the land mortgaged was not redeemed for a period of 30 years, therefore, by virtue of law, he became owner of the land. But Amar Singh, Smt.Bhula, Maman and Gulab in the presence of Rohtash Lamberdar got Mutation No.714 sanctioned on 7.3.1983 to the effect that his father had accepted the mortgage money amounting to Rs.500/- whereby the land stood redeemed in favour of the accused persons. The accused persons got the false mutation sanctioned in connivance with revenue officials, as on 7.3.1983 his father was not alive and thus, they have committed offence punishable under Sections 468, 471, 419, 420 read with Section 120-B IPC. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Additional Chief Judicial Magistrate, Hisar on 13.3.1987 charged all the accused for offence under Section 420 IPC. The charge stated that the land measuring 113 Kanals 4 Marlas was mortgaged by ancestors of the accused with the father of complainant Raghunath and they in connivance with Lamberdar Rohtash and the Patwari Halqa showed fictitiously the payment of an amount of Rs.500/- as mortgage money and reflected in the record that the land had been redeemed. This was done with dishonest intention to debar the complainant of his mortgagee rights which had vested in him after his father's death. Thus, they committed offence punishable under Section 420 IPC. Furthermore on 7.3.1983, they had forged a mutation with an intention that the same shall be used for cheating and thereby committed an offence punishable under Section 468 IPC. Since they had also used the mutation so sanctioned on 7.3.1983 fraudulently as Criminal Revision No.2224 of 2002 [4] genuine one, they also committed an offence punishable under Section 471 IPC. Prosecution examined Diwan Chand as PW1, Ram Pal as PW2, Kishori Lal PW3 and Raghunath as PW4. PW1 Diwan Chand stated that he had prepared copy of mutation No.714 which was Ex.PW1/A. PW2 Ram Pal Patwari deposed that he had not brought the summoned record in the Court. Kishori Lal PW3 stated that Raghunath is resident of his Mohalla (street). His father Het Ram @ Net Ram had expired 38-40 years ago. He had attended the cremation ceremony. Police had not recorded his statement. In cross-examination, he stated that name of son of Het Ram is Raghunath. He had 3-4 daughters, namely, Bhagwanti, another daughter had died and the name of the third daughter he had forgotten. Raghunath PW4 stated that his father was owner of 113 Kanals 4 Marlas of land which was in his possession. This land belonged to Mam Raj who mortgaged this land to his father. His father had expired. It is not in his knowledge as to when the land was mortgaged in favour of his father. Naib Tehsildar Tara Chand had recorded redemption of the land showing that Rs.500/- had been paid. At the time when mutation was sanctioned, his father was not alive, as his father had died about 32 years ago. The learned trial Court rejected the contention of the defence counsel that the original record whereby land was redeemed and mutation to this effect was recorded was not produced before the Court. No revenue official was examined by the prosecution to say that the land had been mortgaged. Furthermore, it was stated that the alleged mutation was Criminal Revision No.2224 of 2002 [5] sanctioned on 7.3.1983, whereas the FIR was lodged on 25.8.1985 after a delay of about 2½ years. Since the accused were held beneficiaries of the mutation, they were held guilty of the offence. The Appellate Court gave no credence to the argument that mutation Ex.PW1/A was not used by the accused. The contention that only revenue official could get the FIR registered in view of provisions of Section 195 Cr.P.C., was also rejected. The defence evidence whereby it was projected that the land was never mortgaged was also rejected on the ground that if it was so, then what was the necessity to record redemption of the land. During the pendency of the present revision petition, a suit for declaration filed by Raghunath against accused Amar Singh, Maman and Gulab etc. was dismissed with costs by the Court of Additional Civil Judge (Sr. Division), Hisar on 20.1.2006. In that suit a declaration was sought that the plaintiff-Raghunath was owner in possession of 113 Kanals 4 Marlas of land situated in Village Badeo Brahman. In the suit, it was averred that an oral mortgage for consideration of Rs.322/- was made by ancestors of the accused and mutation No.277 dated 5.7.1939 was sanctioned. Father of the complainant Het Ram @ Net Ram had died in the year 1956 and the defendant had obtained a fictitious mutation No.714 dated 7.3.1983 in collusion with revenue officials. The Civil Court held that in pursuance of the oral mortgage, no possession had passed on to the father of the complainant and in the revenue record, in the column of ownership as well as possession, predecessor of Mam Raj was recorded as owner in possession. Mam Raj was grandfather of Gulab accused. Lastly, the Civil Court observed as under:- Criminal Revision No.2224 of 2002 [6] “14. It is worth mentioning here that though the plaintiff by way of filing the present suit has asserted his rights in the suit land as mortgagee but it is worth to mention here that from the year 1939 till filing of the present suit in the year 1997 almost 58 years the plaintiff or his predecessor had never asserted their rights as a mortgagee in the suit land. If actual possession of the suit land was given to them as a mortgagee even in that eventuality they might have challenged wrong revenue records as alleged but that has not been so done for the last 58 years. This is a strong circumstance which would reveal that this mutation entries No.277 was though entered in the records of rights but was actually never acted upon and the defendants have been coming in possession of the suit land as ostensible owner since the time of their predecessors. 15. Since, this Court has observed that actually there was no usufructuary mortgage, there is no need to lay-hand upon the law cited by both the counsels as well as the questions as to whether there subsists the remedy of redemption of the suit land or it has been extinguished by efflux of law. Since, actually there was no usufructuary mortgage as mutation No.277 was never acted upon, it cannot be inferred that plaintiff has ever remained in possession of the suit land as a mortgagee and thus, he cannot claim declaration of his rights on the basis of mortgage which was never acted upon and has remained only a paper transaction only.” Legal heirs of complainant Raghunath had filed an appeal Criminal Revision No.2224 of 2002 [7] against the order dated 20.1.2006. Vide, Annexure P9, the appeal was also dismissed on 26.2.2009. The Court of Additional District Judge, Hisar while dismissing the appeal further held that since the land was not mortgaged, therefore, there was no need to go into the question whether remedy of redemption of the suit land subsisted or not. In the order dated 4.5.2010 passed in Criminal Misc. No.32155 of 2009, this Court had recorded the statement of counsel for the petitioners wherein he stated that order passed in appeal, Annexure P9, has not been challenged in the regular second appeal and the same had attained finality. In view of the categoric findings of the Civil Court in orders at Annexures P7 and P9, it cannot be said that alleged forged mutation was used for cheating or was fraudulently used as genuine. Therefore, the petitioners are entitled to acquittal so far as offences under Sections 468 and 471 IPC are concerned. If the land was not mortgaged, then the mutation dated 7.3.1983 whereby redemption of the land was shown cannot be said that it was used for cheating. Therefore, offence under Section 420 IPC is also not made out. But since in the mutation proceedings Het Ram @ Net Ram was impersonated, offence will fall under Section 419 IPC. Petitioners were taken into custody on 30.10.2002. They were ordered to be released on bail on 16.1.2003. They have undergone 2 months and 16 days of actual sentence. The Appellate Court had reduced the sentence under Sections 420, 468 and 471 IPC to eight months rigorous imprisonment. The alleged mutation pertained to the year 1983. FIR was registered against the petitioner-accused in the year 1985. They are in the corridors of the Courts for the last 25 years. Since the offence has been converted to Section 419 IPC, this Court is of the view that considering the Criminal Revision No.2224 of 2002 [8] mental pain and agony of the protracted trial suffered by the petitioners, the sentence already undergone by the petitioners will serve the purpose. As a result of above discussion, the petitioners are acquitted of offence under Sections 420, 468 and 471 IPC. They are held liable for offence under Section 419 IPC and awarded sentence of 2 months and 16 days, the period already undergone by them. With these modifications, the present revision petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) June 04, 2010. JUDGE RC