IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. A-488-MA of 2009 ( O&M ) DATE OF DECISION : 30.11.2010 Kehar Singh .... APPLICANT Versus Mehar Singh and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. S.S. Sodhi, Advocate, for the applicant-complainant. Mr. Gurvinder Singh, Advocate, for respondents No.1 and 2. * * * SATISH KUMAR MITTAL , J. Complainant Kehar Singh has filed this application under Section 378 (4) Cr.P.C., for grant of leave to appeal against the order dated 9.6.2007 (Annexure A-3), passed by the court of Judicial Magistrate Ist Class, Panchkula, whereby the complaint (Annexure A-1) filed by the applicant was dismissed and the accused (respondents herein) were discharged. Along with this application, the applicant has also filed an application (Crl. Misc. No. 42572 of 2009) under Section 5 of the Limitation Act, for condoning the delay of 558 days in filing this Crl. Misc. No. A-488-MA of 2009 -2- application for grant of leave to appeal. In the present case, the applicant filed a complaint (Annexure A-1) against Mehar Singh, Bishni Devi, Lakhwinder Kaur and Keshav Dayal Sharma (respondents herein) under Sections 420/465/467/468/471 IPC, alleging therein that respondent-accused No.3 Lakhwinder Kaur had transferred the plot bearing SCO No. 59, Sector 6, Panchkula, in favour of the applicant-complainant and respondent-accused No.2 Bishni Devi, to the extent of half share each. Respondent-accused No.3 had executed a General Power of Attorney in favour of respondent-accused No.1 Mehar Singh, who is the husband of respondent-accused No.2. It is alleged that though the General Power of Attorney in favour of Mehar Singh was cancelled, but without any lawful authority, he in conspiracy with the other accused committed forgery and got transferred the plot in question in favour of respondent-accused No.4 Keshav Dayal Sharma. On getting the knowledge of the said transfer, the applicant filed civil suit as well as the aforesaid criminal complaint, in which after the conclusion of preliminary evidence, vide order dated 26.1.193 (Annexure A-2), respondents-accused No.1 to 3 were summoned under Sections 465, 468 and 471 IPC. In his preliminary evidence, the applicant-complainant himself appeared into the witness box as CW.1 and examined Sohan Lal, Clerk, Office of HUDA as CW.2, Pawan Kumar as CW.3 and Ms. Jassey Anand, Document Expert as CW.4. After considering the pre-charge evidence led by the complainant, the trial court came to the conclusion that accused No.3 Crl. Misc. No. A-488-MA of 2009 -3- Lakhwinder Kaur was allotted the plot in question by the HUDA on 26.10.1978. She executed an agreement to sell in favour of the complainant and accused No.2 Bishni Devi on 15.1.1988. She further executed a General Power of Attorney dated 5.2.1988 in favour of accused No.1 Kehar Singh. Later on, the plot in question was transferred in favour of the complainant and accused No.2 Bishni Devi and thereafter, accused No.1 and 2 got transferred the plot in the name of accused No.3 Lakhwinder Kaur and then, accused No.2 got the plot transferred in the name of accused No.4 Keshav Dayal Sharma, who was not summoned by the trial court to face trial. It was held that the dispute between the parties is purely of civil nature. Neither the HUDA officials against whom the allegations have been levelled nor respondent No.4 Keshav Dayal Sharma, in whose favour the plot has been transferred, has been made a party in the criminal as well as the civil litigation. It was further held that a civil suit filed by the complainant was dismissed. However, appeal against the said order was pending. The trial court, while coming to the conclusion that the civil litigation between the parties are pending and that the complainant has failed to level any specific allegation against the accused with regard to their intention with which they had cheated the complainant, observed that no prima facie case is made out against the accused. Therefore, vide impugned order dated 9.6.2007 (Annexure A-3), the complaint was dismissed and the accused were discharged. Against the said order, the applicant filed a revision petition (Annexure A-4) before the court of learned Additional Sessions Judge, Crl. Misc. No. A-488-MA of 2009 -4- Panchkula. After taking into consideration the pre-charge evidence as well as the facts and circumstances of the case, vide order dated 6.11.2008 (Annexure A-6), while dismissing the revision petition, the revisional court has come to the conclusion that in the facts and circumstances of the case, the trial court was fully justified in dismissing the complaint, as from the pre-charge evidence, it was not established that any cheating by way of forgery or fraud was committed by the accused. The said finding has been recorded after considering in detail the pre-charge evidence led by the complainant. After dismissal of the aforesaid revision petition, the complainant has filed the instant application, which is hopelessly time barred, by alleging that actually discharge of the accused after dismissal of the complaint amounts to acquittal and the revision petition (Annexure A-4) filed by the complainant against said order was not maintainable and the court of learned Additional Sessions Judge, Panchkula, who has decided the revision petition (Annexure A-4) had no jurisdiction to hear the revision against the acquittal order, therefore, ignoring the order dated 6.11.2008 (Annexure A-6), the complainant is entitled to maintain the present appeal against the order dated 9.6.2007, passed by the Judicial Magistrate Ist Class, Panchkula, dismissing the complaint and discharging the accused. After hearing learned counsel for the parties, we do not find any merit in the contention raised by learned counsel for the applicant. In a warrant case, discharge of the accused under Section 245 (1) Cr.P.C., does not amount to acquittal. Against the order of discharge, the Crl. Misc. No. A-488-MA of 2009 -5- applicant himself has availed the remedy of revision. Learned Additional Sessions Judge, Panchkula, while taking into consideration the facts and circumstances of the case, upheld the order of discharge, passed by the trial court and dismissed the said revision petition. At that time, the applicant- complainant did not whisper that the court of Additional Sessions Judge, Panchkula, was having no jurisdiction, as discharge amounts to acquittal. After availing the remedy of revision and failing in the same, the applicant- complainant was having the remedy of challenging the said order by way of a petition under Section 482 Cr.P.C., but he cannot be permitted to say that the revision petition filed by him before the court of learned Additional Sessions Judge, Panchkula, was not maintainable and the order of revision passed by it was wholly without jurisdiction. In view of these facts, we are of the opinion that the instant appeal, filed by the complainant against the order of discharge dated 9.6.2007, passed by the court of Judicial Magistrate Ist Class, Panchkula, is not maintainable, which is hopelessly time barred. In view of the above, we do not find any merit in this application and the same is, hereby, dismissed. ( SATISH KUMAR MITTAL ) JUDGE November 30, 2010 ( JORA SINGH ) ndj JUDGE