CRM No. M-29152 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-29152 of 2010 (O&M) Date of Decision : October 18, 2011 Amarjit Singh Virk .... PETITIONER Vs. State of Punjab and others ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. A.P.S. Deol, Sr. Advocate, with Mr. A.D.S.Jattana, Advocate, for the petitioner. Mr. G.S.Brar, AAG, Punjab. Mr. Ranjan Lakhanpal, Advocate, for respondent No. 4. * * * AUGUSTINE GEORGE MASIH, J. This petition under Section 482 Cr. P.C. has been preferred by the petitioner, who was a complainant in FIR No. 34 dated 06.02.2006 (Annexure P-1) under Sections 420/120-B IPC, registered at Police Station Phase-I, Mohali for quashing of the proceedings initiated against the petitioner, where, on investigation, he has been arrayed as an accused, whereas the real culprits, who were accused in the FIR, have been found CRM No. M-29152 of 2010 (O&M) 2 to be innocent and one of the accused, namely, Jiwan Singh Virk (hereinafter referred to as 'J.S.Virk') has been named as the complainant and the case now stands registered against the petitioner and some others under Sections 420, 467, 468, 471, 474, 193 and 120-B IPC. It is the contention of the counsel for the petitioner that Plot No. C-140, Phase-VII, Industrial Area, SAS Nagar, Mohail was allotted to Charan Singh Saini, who executed a General Power of Attorney on 18.07.2002 in favour of Sh. J.S.Virk. Being a General Power of Attorney holder, Sh. J.S.Virk entered into an agreement to sell the said plot measuring 4333 sq. yards on 10.08.2004 with the petitioner for a sale consideration of ` 55 lacs, of which the petitioner paid ` 45 lacs through various cheques of different dates. The agreement to sell was duly executed on 10.08.2004 in accordance with law and on the back side of page No. 1, Sh. J.S.Virk executed and signed a receipt dated 10.08.2004, which was duly attested by the witnesses and the petitioner. The physical possession of the plot was also delivered to the petitioner on this very date. As per the agreement to sell, the sale deed, General Power of Attorney, Special Power of Attorney and Will etc. were to be executed by Sh. J.S.Virk in favour of the petitioner on or before 25.10.2004. Since Sh. J.S.Virk did not come forward to execute the sale deed and other documents as per Clause 4 of the agreement in favour of the petitioner, the petitioner filed Civil Suit No. 466 dated 03.08.2005 for specific performance of the agreement to sell dated 10.08.2004 and permanent injunction for executing the sale deed/transferring the said plot in the name of the petitioner after receiving the balance sale price of ` 10 lacs. Thereafter, Sh. J.S.Virk along with his son Sh. Harpreet Singh Virk (hereinafter referred to as 'Sh. H.S.Virk') entered into a compromise with CRM No. M-29152 of 2010 (O&M) 3 the petitioner on 13.10.2005 and on which date, a fresh agreement to sell was executed between the petitioner and Sh. J.S.Virk. Another agreement to sell was executed between the petitioner and Sh. H.S.Virk on the same day, which was duly executed, according to which, the price of the plot was increased from ` 55 lacs to ` 67 lacs. In this agreement to sell, again the possession of the plot in question given to the petitioner was confirmed. As per the enhanced price of the plot, two bank drafts were issued in favour of Sh. J.S.Virk amounting to ` 17 lacs and ` 5 lacs, thus the total sale price of ` 67 lacs was received by Sh. J.S.Virk, which included the enhanced amount. As per this agreement to sell dated 13.10.2005, the plot was to be transferred in the name of the petitioner by Sh. J.S.Virk and Sh. H.S.Virk on or before 12.01.2006. In the light of the compromise entered into between the parties, the civil suit preferred by the petitioner was withdrawn by him on 22.10.2005. Sh. J.S.Virk and Sh. H.S.Virk did not come forward to execute the sale deed/transfer the plot as per the agreement to sell and thus, the petitioner was forced to file another Civil Suit No. RT 1615 on 21.01.2006 for specific performance of agreement to sell and permanent injunction. This suit was decreed ex-parte on 12.02.2007 by the Additional Civil Judge (Sr. Division), Mohali. With a mala-fide intention and in order to cause wrongful gain to themselves and wrongful loss to the petitioner, Sh. J.S.Virk and Sh. H.S.Virk entered into a conspiracy with one Sandeep Maggu forged and fabricated the agreement to sell dated 28.12.2004 to grab the industrial plot. In furtherance to this, Sandeep Maggu filed a civil suit No. 1139 dated 18.11.2006 in the Court of Civil Judge (Jr. Division), Mohali, wherein application for temporary injunction was dismissed on 10.01.2008 and thereafter, the suit was dismissed vide order dated 30.10.2010. One of the CRM No. M-29152 of 2010 (O&M) 4 issues, which was framed, was whether the plaintiff is entitled to possession through specific performance of agreement to sell dated 28.12.2004? On which the learned trial Court returned a finding that the agreement to sell dated 28.12.2004 has been prepared and ante-dated so as to deprive the petitioner from the property in dispute and the plaintiff was not entitled to the specific performance of the agreement to sell as the same was an outcome of the collusion and forgery of the plaintiff and Sh. J.S.Virk. On the basis of the findings of this civil suit, counsel for the petitioner submits that the mala-fide intention of Sh. J.S.Virk is clearly spelt out. Counsel for the petitioner further contends that the petitioner got compared the signatures of Sh. J.S.Virk and Sh. H.S.Virk from handwriting expert on the agreements to sell dated 10.08.2004 and 13.10.2005, on which the opinion was received that the signatures are of the same person, upon which the petitioner filed a complaint against Sh. J.S.Virk, Sh. H.S.Virk and three others to the Station House Officer, Police Station Mohali resulting in registration of FIR No. 34 dated 06.02.2006 under Sections 420, 120-B IPC. The local police has been won over and instead of prosecuting the accused named in the FIR, has initiated action against the petitioner and others by nominating them as accused and treating Sh. J.S.Virk as a complainant. He contends that a complaint was moved by the petitioner to the President of NRI Sabha, Jalandhar, Punjab, which was marked to the Deputy Commissioner, SAS Nagar, Mohali, who further marked it to the Sub-Divisional Magistrate for enquiry. On enquiry, the Sub-Divisional Magistrate came to the conclusion that the petitioner is not an accused as he has not committed any offence. The report was received by the District Magistrate, Mohali, which was sent by him to the CRM No. M-29152 of 2010 (O&M) 5 District Attorney, Rupnagar, who gave his opinion on 03.11.2008 that the petitioner was innocent and rather the original accused in the FIR, namely, Sh. J.S.Virk, Sh. H.S.Virk and three others are required to be proceeded against. His further contention is that the Sub-Divisional Magistrate, Mohali in his enquiry has found that Sh. Rachhpal Singh, DSP (HQ), Mohali took ex-India leave from 13.07.2007 to 07.08.2007 and went to the United Kingdom to meet Sh. J.S.Virk. On his return, without making any further enquiry and in connivance with Sh. Ajmer Singh, Inspector, Economic Offence Wing and Raghbir Singh, Sub-Inspector, Economic Offence Wing, arrested the petitioner on 18.08.2007 from his factory and kept him in illegal confinement for more than 24 hours and tortured him with an intention to put pressure over him to return the plot in question or pay ` 60 lacs to Sh. J.S.Virk. As the local police has acted with a mala-fide intention and in connivance with accused Sh. J.S.Virk. The proceedings initiated against the petitioner, on the basis of the investigation conducted by the police in the FIR registered at his behest, deserves to be quashed. He submits that the findings given by the Civil Court are relevant and can be taken into consideration by this Court while deciding cases under Section 482 Cr.P.C. Prayer for quashing of the proceedings initiated against the petitioner is also made on the basis of the submission that the same have been initiated against the petitioner with an ulterior motive for wreaking vengeance with a view to spite him due to private and personal grudge. In support of these contentions, counsel has placed reliance upon the judgment of the Supreme Court in the cases of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) Supreme Court Cases 335 and K.G.Premshanker vs. Inspector of Police and another, (2002) 8 Supreme Court Cases 87. CRM No. M-29152 of 2010 (O&M) 6 On the other hand, counsel for the State submits that the petitioner has not approached this Court with clean hands and has suppressed material facts. He has not only projected the wrong version of facts but levelled false allegations against the police officers and local police. The allegations made against the police have been specifically denied and he contends that on the basis of the investigation, it was found that the petitioner himself forged an agreement to sell dated 10.08.2004 purported to have been executed by one Sh. J.S.Virk alleging that he did not get the sale deed executed in his favour and executed the agreement to sell in favour of the third party for getting the present case registered. The allegations were also made that another agreement to sell dated 13.10.2005 was entered into between Sh. H.S.Virk son of Sh. J.S.Virk and despite that, Sh. J.S.Virk entered into yet another agreement to sell with one Sh. Ranbir Singh and received a sum of ` 2 lacs vide receipt dated 13.10.2005. During the investigation, signatures on the agreements to sell dated 10.08.2004, 13.10.2005 of Sh. J.S.Virk were got compared from the Forensic Science Laboratory. This was done in the light of the fact that Sh. J.S.Virk categorically alleged that the agreement to sell, on the basis of which the present case is registered, was never executed by him and the same contained forged signatures. Similar was the contention with regard to the agreement to sell alleged to have been executed by his son Sh. H.S.Virk. It is during this enquiry/investigation, the signatures of Sh. J.S.Virk and Sh. H.S.Virk were taken in the presence of Executive Magistrate, which were sent to the Forensic Science Laboratory along with standard admitted signatures of theirs. The Forensic Science Laboratory opined that the signatures of Sh. J.S.Virk and his son Sh. H.S.Virk were forged on the documents. Another aspect, which was highlighted by the CRM No. M-29152 of 2010 (O&M) 7 State, was that the alleged agreement to sell dated 28.12.2004 executed by Sh. J.S.Virk in favour of Sh. Sandeep Maggu, wherein the petitioner himself is a witness to the agreement to sell, itself shows that the entire case, as projected by the petitioner, was a false one. The stamp papers, on which the agreement to sell was written, were found to be purchased from Rajpura, though none of the parties reside there nor is the property situated there. The stamp vendor, from whom the stamps were bought, disclosed that the register for the relevant period of time had already been misplaced and for which, she had got recorded the Daily Diary Report in the concerned Police Station. On the basis of the investigation and the documentary evidence collected, the persons named as accused by the petitioner in his complaint were declared innocent, whereas the petitioner along with his accomplice was arrayed as accused in the present case. Since allegations levelled against the petitioner stood duly proved, challan was presented before the Court of competent jurisdiction on 03.10.2007, where the matter was pending for framing of charges when the petitioner had approached this Court and obtained stay of the trial proceedings. Making reference to the report of the Sub-Divisional Magistrate, Mohali, wherein recommendations were made for cancellation of the proceedings initiated against the petitioner, counsel contends that as a matter of fact, on receipt of the said report and opinion of the District Attorney, Rupnagar, the District Magistrate sought comments, with regard to the investigation conducted, from the Senior Superintendent of Police, Mohali. On considering the detailed comments, as sent, the District Magistrate, Mohali, vide his order dated 25.08.2005, consigned the complaint submitted by the petitioner to the record room being without any substance. Counsel contends that the petitioner has not disclosed that he had earlier approached this Court by filing Crl. Misc. No. M-5415 of 2007 CRM No. M-29152 of 2010 (O&M) 8 by alleging that the accused Sh. J.S.Virk and others have not been arrested in the FIR got registered by him. Strangely enough, in the said petition, it was alleged by him that Sh. J.S.Virk and others have taken a sum of ` 93 lacs from him but still did not execute the sale deed in his favour. This Court directed the then Deputy Inspector General of Police, Ludhiana to conduct an enquiry into the assertions and allegations made by the petitioner. The Deputy Inspector General of Police conducted a detailed and thorough enquiry and submitted his report before this Court. On considering the report, which detailed the facts and circumstances on the basis of which the petitioner was arrayed as an accused, this Court, while finding Sh. J.S.Virk and others as innocent, disposed of the petition vide order dated 11.05.2010 with the observations that considering the facts and circumstances, there was no ground to issue directions as the investigation had been concluded and the final report under Section 173 Cr.P.C. already submitted in the Court of competent jurisdiction. He, on this basis, contends that this Court had earlier come to a conclusion that the report, as submitted by the police under Section 173 Cr.P.C., did not call for any interference. The present proceedings without disclosing this fact amount to abuse of process of Court with an intention to delay the proceedings before the trial Court. He, accordingly, prays for dismissal of the present petition. Apart from what has been submitted by the counsel for the State, counsel for Sh. J.S.Virk has vehemently contended that this petition cannot be entertained for the reason that these are all disputed questions of facts, which cannot be gone into by this Court while exercising its extra- jurisdiction under Section 482 Cr.P.C.. His contention is that the decree dismissing the suit of Sh. Sandeep Maggu dated 30.10.2010 passed by the CRM No. M-29152 of 2010 (O&M) 9 Additional Civil Judge (Sr. Division), Mohali stands challenged before the Appellate Court, wherein notice has already been issued to the respondent-defendant and is pending consideration and, therefore, the findings, as recorded by the Civil Court, cannot be termed as final as of now and no reliance can be placed thereon. As regards the complaint, which has been submitted by the petitioner to the President of the NRI Sabha, Jalandhar, Punjab, he contends that a recommendation was made to the Government for withdrawal of case, on which the Department of Home and Justice, vide their office Letter No. 7/21/08-2/Court (1) 223 dated 28.01.2011 has intimated and informed the petitioner that the case cannot be withdrawn and he has been advised to pursue his claim before the Court. He, on this basis, contends that all the grounds, which have been raised by the petitioner, cannot be sustained in the light of the decisions taken by the competent authority on the complaint and request made by the petitioner. Prayer for dismissal of the petition has accordingly been made. I have heard the counsel for the parties and with their able assistance, have gone through the records of the case. The petitioner has failed to disclose in his petition that he had earlier approached this Court by filing Crl. Misc. No. M-5415 of 2007. Although the prayer made in the said petition under Section 482 Cr.P.C. was for issuance of directions to the official respondents to arrest the accused named by him in FIR No. 34 dated 06.02.2006 but it cannot be said that the reference of the said petition was not required to be made or that the same was not relevant in the present case as during the pendency of the said case, directions were issued to the Deputy Inspector General of Police, Ludhiana to conduct an enquiry into the assertions of the petitioner CRM No. M-29152 of 2010 (O&M) 10 and submit a report. In the said report, it was concluded that Sh. J.S.Virk and Sh. H.S.Virk were innocent and rather petitioner Amarjit Singh was guilty of forging documents. Order dated 11.05.2010 passed by this Court in Crl. Misc. No. M-5415 of 2007 preferred by the petitioner reads as follows:- “ The petition has been filed under Section 482 Cr.P.C. seeking directions to respondent Nos. 1 and 2 to arrest respondent Nos. 3 to 7 in case FIR No. 34 dated 6.2.2006 under Section 420, 120-B IPC, Police Station, Mohali. Learned counsel for the respondent State contends that enquiry was conducted by Deputy Inspector General, Jalandhar Range. It has been concluded that case was got registered at the instance of petitioner, Amarjit Singh. However, during investigation, it transpired that Jiwan Singh Virk (respondent No. 3) and Harpreet Singh Virk (respondent No. 4) are innocent, rather petitioner, Amarjit Singh, is guilty of forging documents. Learned counsel for the respondent-State further states that final report under Section 173 Cr.P.C. has already been filed in the Court of Illaqa Magistrate. Considering the above, there is no ground to issue directions, investigation having been concluded and final report under Section 173 Cr.P.C. having been filed. The petition is accordingly disposed of.” This appears to be an omission on the part of the petitioner, which cannot be totally overlooked. However, even in the given facts and CRM No. M-29152 of 2010 (O&M) 11 circumstances of the present case, the documents, which have been relied upon by the petitioner, are only half baked especially when, reference is made to the report of the Sub-Divisional Magistrate, Mohali and the opinion of the District Attorney, Rupnagar as these were only part of the process of enquiry but the conclusion reached by the competent authority was not brought to the notice of the Court by the petitioner, which was that the complaint submitted by the petitioner stood filed by the District Magistrate vide order dated 25.08.2005. Similar is the position with regard to his complaint submitted to the Non-Resident Indian Forum, where again although recommendation was made for cancellation of the proceedings initiated against the petitioner but the same stood concluded against the petitioner when the Government, Department of Home and Justice informed the petitioner that the case cannot be withdrawn vide letter dated 28.01.2011. As regards the contention of the petitioner that the Civil Court decree is in his favour, wherein the suit preferred by Sh. Sandeep Maggu stood dismissed and findings returned against the plaintiff with regard to agreement to sell dated 28.12.2004 that it had been prepared and ante- dated to deprive the petitioner from the property in question, suffice it to say that an appeal has been preferred against the said order which is pending consideration before the Appellate Court after notice to the petitioner, therefore, it would not be appropriate to place reliance upon the findings returned at this stage. In any case, these are all disputed questions of fact, which cannot be gone into by this Court in proceedings under Section 482 Cr.P.C. as all these matters, allegations and counter allegations require evidence to led before the trial Court, which can only be decided thereafter. The judgment of the Supreme Court in the case of CRM No. M-29152 of 2010 (O&M) 12 K.G.Premshanker (supra) with regard to the effect of the findings of the Civil Court with reference to the criminal proceedings, the same cannot be of any help to the petitioner since the matter is pending adjudication in appeal and in any case, the Hon'ble Supreme Court did not hold that the findings given by the Civil Court would be, in all circumstances, binding in the criminal proceedings. Reliance of the counsel for the petitioner on Bhajan Lal's case (supra) also would not help the case of the petitioner as in the facts and circumstances of this case, it cannot be said that the criminal proceedings instituted against the petitioner are mala-fide or malicious with an ulterior motive for wreaking vengeance against him in the light of the presentation of the challan against the petitioner before the Court of competent jurisdiction on 03.10.2007. Thus, finding no merit in the present petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH ) October 18, 2011 JUDGE pj