IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 28967 of 2008 Date of decision: January 14, 2009 Kulwant Singh …. Petitioner Versus State (U.T. Chandigarh) and others …. Respondents Present: Mr. ADS Sukhija, Advocate for the petitioner. Mr. Puneet Bassi, Advocate for Mr. Hemant Bassi, Advocate for respondent No.1, U.T., Chandigarh. Mr. Baljeet Singh, Advocate for respondents No.2 and 3. *** S.S. SARON, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (“CrPC” – for short) praying that the petitioner be allowed to compound the offence punishable under Section 420 Indian Penal Code (‘IPC’ – for short) for which he has been convicted by the learned Judicial Magistrate, Ist Class, Chandigarh vide order dated 13.11.2007 (Annexure P5). A further prayer is made for quashing the order dated 22.9.2008 (Annexure P1) passed by the learned Additional Sessions Judge, Chandigarh whereby the learned Court has declined the prayer of the petitioner and respondents No.2 and 3 for compounding the offence. Case FIR No.55 dated 24.4.2005 was registered at Police Station Industrial Area, Chandigarh for the offences punishable under the provisions of the Punjab New Capital (Periphery) Control Act, 1952 (“Act” – for short) and Section 420 IPC. The complainant SK Setia was posted as Land Acquisition Officer, U.T., Chandigarh. He reported that Suresh Kumar, Kanungo had informed that Kulwant Singh (petitioner) had sold some land to one Sh. Ram Dass (Mochi) and Sh. Crl. Misc. No. M- 28967 of 2008 [2] Jagat Ram (respondent No.2) with a false promise and inducement that they can construct a house for residential purposes. It was further alleged that the petitioner in fact gave possession of the forest land to Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) after taking money. Besides, the petitioner had also constructed six godowns on agricultural land comprised in Rectangle No.9, Khasra Nos. 13/2 and 14/2 in Village Daria. The construction had been raised in violation of the provisions of Sections 5 and 6 of the Act. Besides, the constructed area was being misused for commercial purposes as the petitioner had given two godowns to Sh. Pawan Goel of M/s Sadhu Ram & Co. Distributor and Wholesale Stockist, SCO No.41, Sector 7-C, Chandigarh. This change of use of agricultural land, it was alleged, was in violation of Section 11 and was punishable under Section 12(2) of the Act. On these allegations a request was made for registration of FIR for fraud and cheating as also for the offence punishable under Section 12 of the Act. FIR was registered and statements of witnesses recorded. After completion of investigation, challan was filed in Court. On finding a prima facie case against the petitioner, following charges were framed against him by the learned Judicial Magistrate Ist Class, Chandigarh:- “That prior to 24.4.2005 you above named accused sold five marlas plot to Jagat Ram and Neelam Devi and thereby committed offence punishable under Section 12 of the Punjab New Capital (Periphery) Control Act, 1952 and within my cognizance. Secondly, that on 27.2.1996 you above named accused sold 5 marlas of land to Neelam Devi but by dishonest inducement gave possession of five marlas of land which included 4 marlas of land belonging to Crl. Misc. No. M- 28967 of 2008 [3] Forest Department which has to be vacated causing wrongful loss to said Neelam Devi and thereby committed an offence punishable under Section 420 IPC and within my cognizance. Thirdly, on the same date you sold five marlas of land to Neelam Devi with false promise and inducement that they can construct a house for residential purpose thereon and further fraudulently and dishonestly misrepresented that land is free from all encumbrances whereas such land use conversion was not permissible under the Punjab New Capital (Periphery) Control Act, 1952 and thereby committed offence punishable under Section 420 IPC. Fourthly, that on 22.10.1993 you above named accused sold 5 marlas of land to Jagat Ram but by dishonest inducement gave possession of five marlas of land which included 1/2 marla land belonging to forest department which has to be vacated causing wrongful loss to said Jagat Ram and thereby committed an offence punishable under Section 420 IPC and within my cognizance. Fifthly, on the same date you sold five marlas of land to Jagat Ram with false promise and inducement that they can construct a house for residential purpose thereon and further fraudulently and dishonestly misrepresented that land is free from all encumbrances whereas such land use conversion Crl. Misc. No. M- 28967 of 2008 [4] was not permissible under the Punjab New Capital (Periphery) Control Act, 1952 and thereby committed offence punishable under Section 420 IPC. And I hereby direct that you be tried by this Court for the alleged offence committed by you.” After framing the charges, prosecution in order to prove its case, examined Suresh Kumar (PW1), Ramesh Gill (PW2), Jagat Ram (PW3) (respondent No.2), Balraj Patwari (PW4), SK Setia (PW5), Joginder Singh (PW6), SI Yad Ram (PW-7), SI Ram Parkash (PW-8), Neelam Devi (PW-9) (respondent No.3), Inspector Moti Ram (PW-10), GS Saini (PW-11), Chandi Prasad (PW-12) and Inspector Ved Pal (PW-13). The statement of the petitioner in terms of Section 313 CrPC was recorded and the substance of the evidence appearing against him was put to him. In defence, the petitioner examined Som Nath (DW-1) and Rajinder Pal Sharma (DW-2). The learned Judicial Magistrate Ist Class, Chandigarh after considering the evidence and material on record, held that the prosecution had failed to prove the charge under Section 12 of the Act and acquitted the respondents of the said charge under Section 12 of the Act. Similarly no offence under Section 420 IPC was held to be made out insofar as the plots sold to Jagat Ram and Neelam Devi were sold on a false promise that these were free from all encumbrances and that residential construction was permissible thereon. However, it was held that the prosecution had succeeded in proving charge for the offence under Section 420 IPC regarding the fraud played by the petitioner with Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) by taking money for his own land but actually delivering to them possession of part of the forest land instead of his own land, which they had to later on surrender to the forest department. The petitioner was sentenced to undergo Crl. Misc. No. M- 28967 of 2008 [5] rigorous imprisonment for a period of two years, besides, to pay a fine of Rs.5000/- and in default of payment of fine, he was ordered to undergo further imprisonment for a period of 15 days. The petitioner aggrieved against the order to the extent that he had been convicted and sentenced, filed an appeal before the learned Sessions Judge, Chandigarh. In appeal, the petitioner filed an application seeking permission to compound the offence. The learned Additional Sessions Judge, Chandigarh vide order dated 22.9.2008 (Annexure P1) declined the said prayer. It was observed that in the present case, the allegations levelled against the petitioner were established that he had not only cheated Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) but also cheated the Forest Department, U.T. Chandigarh as well as the Union Territory, Chandigarh. Therefore, it was observed that in the absence of any application of the Land Acquisition Officer, U.T. Chandigarh, permission cannot be accorded to compound an offence on the application of Sh. Jagat Ram (respondent No.2) and Smt. Neelam Devi (respondent No.3). As such the application filed by the petitioner was dismissed. Aggrieved against the same, the petitioner has filed the present petition. Mr. ADS Sukhija, Advocate learned counsel appearing for the petitioner has submitted that the petitioner has been convicted only for the offence for charges No.3 and 4 framed against him on the allegations that the petitioner sold five marlas of land to Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) and they wrongfully gave possession of forest land to the petitioner. It is submitted that the evidence and material on record shows that the possession of forest land was never given to the petitioner. A reference has been made to the deposition of S.K. Setia complainant (PW-5), wherein he has stated that the land of the Forest Department and the local land owners was demarcated in the presence of revenue officials and both were in their respective possessions. Therefore, it is submitted that the offence under Section 420 IPC being compoundable in terms of Section 320 (2) Crl. Misc. No. M- 28967 of 2008 [6] CrPC with the person cheated which in the present case would be Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3), the petition is liable to be allowed. Mr. Puneet Bassi, Advocate learned counsel appearing for U.T. Chandigarh submits that the order passed by the learned Additional Sessions Judge, Chandigarh is just and proper and the application seeking compounding the offence has rightly been dismissed. Mr. Baljeet Singh, Advocate learned counsel appearing for respondents No.2 and 3 has submitted that the matter has been compromised between the parties and therefore, the application seeking the compounding of the offence is liable to be allowed in view of the provisions of Section 320 (2) CrPC. I have given my thoughtful consideration to the matter and also perused the record of the case. The statement (Annexure P4) of S.K. Setia (PW-5) who was Land Acquisition Officer, UT, Chandigarh in the year 2005 has been placed on record. It is stated by S.K. Setia (PW-5) that he had made a complaint (Ex.PW5/1) to Senior Superintendent of Police, UT, Chandgiarh against the petitioner requesting the latter to register a FIR. It is submitted that there were three elements of the complaint one of which was the wrong handing over of the forest land to the vendees which was testified by the Forest Department. It is also learnt that the complaint has been compared by the Department. However, the complaint regarding violation of Section 12 (2) of the Act was still persisting. Besides, the accused Kulwant Singh (petitioner) constructed six godowns of agricultural land in rectangle No.9, Khasra Nos13/2 and 14/2 in Village Daria. The construction had been raised without any permission under the provision of the Act for commercial gains. S.K. Setia (PW-5) had passed demolition order on 18.1.2002 (Ex.PW5/3). In cross-examination, S.K. Setia (PW-5) accepts it as correct that the land of the Forest Department and the local land owners was demarcated in the presence of revenue officials and both were in Crl. Misc. No. M- 28967 of 2008 [7] their respective possessions. In the face of the said deposition of the complainant SK Setia (PW-5), the learned counsel for U.T. Administration has not been able to dispute the fact that the forest land has not been encroached upon or that possession of the forest land is with respondents No.2 and 3. The cross-examination of the complainant S.P. Setia (PW-5) as already noticed indeed shows that it is accepted by him as correct that the land of Forest Department and local land owners was demarcated in the presence of the revenue officials and both were in their respective possession. Therefore, evidently it is not a case where the forest land has been proved to be transferred or that possession was given in pursuance of the sale deed executed by the petitioner in respect of his land in favour of respondents No.2 and 3. In fact even the charge that has been framed against the petitioner is that the petitioner had sold five marlas of land to Neelam Devi (respondent No.3) but by dishonest inducement gave possession of five marlas of land which included four marlas of land belonging to Forest Department which had to be vacated causing wrongful loss to Neelam Devi (respondent No.3). Besides, the petitioner sold five marlas of land to Jagat Ram (respondent No.2) but by dishonest inducement gave possession of five marlas of land which included half marlas of land belonging to Forest Department which had to be vacated causing wrongful loss to Jagat Ram. Therefore, evidently the loss regarding transfer of land for which the petitioner had been charged is attributed to respondents No.2 and 3. They have admittedly compounded the offence with the petitioner. Besides, during demarcation proceedings, the forest land has been demarcated and both the Forest Department and the purchasers and other land owners are in possession of the land according to their entitlement. In the circumstances, there is no reason as to why the application for compounding the offences in terms of Section 320 (2) CrPC be not allowed, Crl. Misc. No. M- 28967 of 2008 [8] especially when the persons aggrieved i.e. respondents No.2 and 3 have no grievance. In terms of sub-Section (2) of Section 320 CrPC, the offences punishable under the Sections of the IPC specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by person mentioned in the third column of that table. Section 420 IPC relating to the offence of cheating can be compounded with the permission of the Court with the person who has been cheated. As already noticed, respondents No.2 and 3 who are stated to have been cheated and for which the petitioner was charged have compounded the offence. The petitioner has been acquitted of the other offences under the Act. Therefore, there is no reason as to why he should not be allowed to compound the offence under Section 420 IPC for which necessary permission is also granted. Accordingly, the Crl. Misc. petition is allowed and the order dated 22.9.08 (Annexure P1) passed by the learned Additional Sessions Judge, Chandigarh is set aside and the application seeking compounding the offence is allowed. The petitioner shall accordingly stand acquitted of the charge under Section 420 IPC as well relating to the fraud played by the petitioner with Jagat Ram (respondent No.2) and Neelam Devi (respondent No.3) by taking money from his own land but actually delivering to them the possession of part of the forest land. (S.S. SARON) JUDGE January 14, 2009 amit