Crl.Misc.No.M-23756 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No. M-23756 of 2008 Date of decision: 29.10.2009 Banta Singh and another ... Petitioners versus State of Punjab and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.G.S.Gandhi, Advocate, for the petitioners. Mr.P.S.Sidhu, Addl.AG, Punjab. Mr.Tribhuwan Singla, Advocate, for respondent No.2. ... JORA SINGH, J. Banta Singh and Pritpal Singh filed this petition under Section 482 Cr.P.C. for quashing of FIR No.90 dated 14.5.2004 under Sections 419/420/465/467/468/471/120-B IPC, registered at Police Station Shahkot, District Jalandhar. Allegation of the petitioners is that about 5 decades back, father of petitioner No.1, namely, Harnam Singh purchased some land in Village Nawan Pind Khalewal, in the name of petitioner No.1 Banta Singh and his brothers. Banta Singh and others are in possession of the land purchased along with land measuring 7 kanals 15 marlas bearing khewat No.217, khatauni No.346. Half of the land was in the name of Bagga Singh son of Jawala Singh, as per jamabandi for the year 1962-63 (Annexure P-1). Petitioners are in possession of the land as per different jamabandis for the years 1968-69 (Annexure P-2) and 1973-74 (Annexure P-3). Crl.Misc.No.M-23756 of 2008 2 In the year 2000, one Jagir Singh from Utter Pradesh approached the petitioners on the allegation that he is attorney of Bagga Singh son of Jawala and is competent to transfer the land. Petitioners agreed to purchase the land and a sale deed was executed in their favour. Necessary entries were made in the revenue record, but in the year 2004, Joginder Singh son of Ganga Singh, respondent No.2, claimed that the land was owned by his grand father, whose father’s name was Mula Singh. Petitioners replied that they have purchased the land from Jagir Singh, GPA of Bagga Singh son of Jawala Singh. But Joginder Singh got recorded present FIR No.90 dated 14.5.2004 (Annexure P-4). Allegation in the FIR is that the petitioners are in possession of the land on payment of thekka. In fact, the petitioners never paid thekka to Joginder Singh or anybody else. There was a panchayat and as per compromise, petitioner No.1 agreed to transfer the purchased land from Jagir Singh in favour of Joginder Singh and his cousins. As per compromise, petitioner No.1 has transferred the land in favour of Joginder Singh vide registered sale deed dated 18.5.2004. Joginder Singh and his cousins submitted affidavits (Annexures P-5 to P-9) to the effect that the matter has been compromised. After verifying the affidavits, untraced report (Annexure P-10) was submitted. Request (Annexure P-11) was moved by the police for cancellation of the FIR. Cancellation report was submitted in the Court and notice was issued to Joginder Singh, but cancellation report was not accepted. Prosecution was directed to re-investigate the matter within 3 months and submit report. Notice of motion was issued. Crl.Misc.No.M-23756 of 2008 3 State filed reply in the shape of affidavit of Diljinder Singh Dhillon, DSP, Sub Division Shahkot, District Jalandhar, to the effect that petition is not maintainable because FIR No.90 dated 14.5.2004 is still under investigation. Bagga Singh son of Mula Singh, grand father of respondent No.2, was living with respondent No.2 and he died on 30.2.1973. Bagga Singh was owning ancestral land. Some of the land was sold to Bachan Singh and others. One acre of land situated in Village Khose was let out to Amar Singh, resident of Village Nawan Pind Khalewal. Banta Singh, petitioner No.1, is cultivating the land on thekka for the last about 14 years. Thekka is being paid to respondent No.2. Power of attorney dated 15.6.1999 was forged and fabricated in the name of Jagir Singh at the instance of Bagga Singh son of Jawala Singh. Jagir Singh is brother of Ajit Singh, son-in-law of petitioner No.1. On the basis of forged and fabricated power of attorney, Banta Singh got registered sale deed in his name qua the land measuring 7 kanals 11 marlas. Power of attorney dated 15.6.1999 was forged and fabricated because Bagga Singh had already died on 30.2.1973. Untraced report was submitted but the same was not accepted by the Illaqa Magistrate. Direction was given to reinvestigate the matter and the same is under investigation. Respondent No.2 filed reply in the shape of affidavit to the effect that petitioners knew Jagir Singh, brother of Ajit Singh, who is the son-in-law of petitioner No.1 Banta Singh. Power of attorney in favour of Jagir Singh dated 15.6.1999 was forged and fabricated, particularly when Bagga Singh had died in the year 1973. Petitioner had the knowledge about the death of Bagga Singh son of Mula Singh. Bagga Singh son of Jawala Singh was not the owner of the land. Petitioners had purchased some land Crl.Misc.No.M-23756 of 2008 4 in the year 1950 from grand father of the answering respondent. Cancellation report was rightly rejected by the Judicial Magistrate. Learned counsel for the petitioners argued that about 5 decades back, Harnam Singh father of Banta Singh petitioner No.1 had purchased land situated in Village Nawan Pind Khalewal, in the name of petitioner No.1 and his brothers. As per sale deed, petitioners are in possession of the land along with land measuring 7 kanals 15 marlas. Half of the land was owned by Bagga Singh son of Jawala Singh. Jagir Singh is the attorney of Bagga Singh son of Jawala Singh. Vide registered sale deed by the attorney, land was purchased. Banta Singh petitioner No.1 was not paying thekka etc. When there is a dispute regarding alienation of the land by the attorney of Bagga singh son of Jawala Singh, then there was a panchayat. Petitioner No.1 agreed to retransfer the land in favour of Joginder Singh. Land was retransferred. Joginder Singh and his cousins gave affidavits to the effect that the matter was compromised, but Joginder Singh got registered FIR No.90 dated 14.5.2004. Joginder Singh and his cousins failed to honour different affidavits (Annexures P-5 to P-9). In view of affidavits (Annexures P-5 to P7) by Joginder Singh, affidavit (Annexure P-8 ) by Surjan Singh and affidavit (Annexure P-9) by Jagtar Singh, FIR No.90 dated 14.5.2004 may be quashed. Learned counsel for the State and respondent No.2 argued that about 5 decades back, Harnam Singh, father of petitioner No.1 Banta Singh, had purchased land from the grand father of Joginder Singh. Petitioners knew the grand father of respondent No.2, but later on power of attorney dated 15.6.1999 was forged and fabricated in the name of Jagir Singh. Jagir Singh is brother of Ajit Singh, son-in-law of Banta Singh petitioner No.1. Crl.Misc.No.M-23756 of 2008 5 Cancellation report was submitted but the same was not accepted. Matter is under re-investigation. So, the petition is not maintainable at this stage. Annexure P-1 is the copy of jamabandi for the year 1962-63. As per jamabandi, Ishar Singh and others were the owner to the extent of half share. Remaining half share was owned by Bagga Singh son of Jawala Singh. Annexure P-2 is the copy of jamabandi for the year 1968-69, whereas Annexure P-3 is the copy of jamabandi for the year 1973-74. Revenue record shows that Bagga Singh son of Jawala Singh owned land to the extent of half share. Banta Singh petitioner No.1 was also owning some of the land. Allegation of the petitioners is that Jagir Singh was the brother of Ajit Singh. Ajit Singh was the son-in-law of Banta Singh, petitioner No.1. Power of attorney dated 15.6.1999 was executed by Bagga Singh son of Jawala Singh in favour of Jagir Singh. On the basis of this power of attorney, land was sold to the petitioners. Further allegation of the petitioners is that when there was a dispute, then the dispute was settled by panchayat. As per compromise, petitioner No.1 agreed to transfer the land purchased through Jagir Singh in favour of Joginder Singh. Sale deed dated 18.5.2004 was executed. In case, Jagir Singh was the attorney of Bagga Singh son of Jawala Singh and had rightly executed the sale deed, then the petitioners were not expected to re-transfer the land vide sale deed dated 18.5.2004 in favour of Joginder Singh. Allegation of Joginder Singh is that his grand father Bagga Singh son of Mula Singh was the owner. Bagga Singh son of Jawala Singh Crl.Misc.No.M-23756 of 2008 6 was not the owner. Power of attorney dated 15.6.1999 was forged and fabricated, when Bagga Singh had died in the year 1973. Annexure P-4 is the copy of FIR No.90 dated 14.5.2004 in view of the application of Joginder Singh. Allegation of the petitioners is that Joginder Singh gave affidavits dated 18.4.2004 (Annexures P-5 to P-7) to the effect that in view of the compromise, no action is required against the petitioners as per FIR No.90 dated 14.5.2004. Surjan Singh and Jagtar Singh gave affidavits Annexures P-8 and P-9, respectively, to the effect that dispute amongst the parties was settled before the panchayat. So, no action is required against the petitioners as per FIR No.90 dated 14.5.2004. Learned counsel for the petitioners further submitted that Annexure P-10 is the cancellation report as per compromise, but the same was not accepted. Annexure P-11 is the application to the effect that untraced report was prepared by SHO, PS Shahkot. Circle Officer agreed with the report. So, untraced report be submitted to the Court for approval. But untraced report was not accepted and a direction was given to reinvestigate the matter in dispute. After order of the Court to reinvestigate the controversy amongst the parties, the matter is under investigation. Prosecution is yet to present the report. At this stage, nothing can be said as to whether prosecution is going to submit untraced or cancellation report or submit challan against the petitioners. As discussed earlier, according to the petitioners, Bagga Singh son of Jawala Singh was the owner. Bagga Singh son of Jawala Singh had executed power of attorney dated 15.6.1999 in favour of Jagir Singh and Crl.Misc.No.M-23756 of 2008 7 through attorney, land was purchased from Bagga Singh son of Jawala Singh, whereas allegation of respondent No.2 is that Bagga Singh son of Jawala Singh was not the owner. In fact, Bagga Singh son of Mula Singh, grand father of respondent No.2, was the owner. Power of attorney dated 15.6.1999 was a forged and fabricated document, because Bagga Singh had died in the year 1973. In case the land was purchased through attorney from the right owner, then petitioners were not expected to execute sale deed dated 18.5.2004 in favour of respondent No.2 in view of the compromise. Without evidence, nothing can be said whether Annexures P-5 to P-7 are the affidavits of Joginder Singh, Annexure P-8 is the affidavit of Surjan Singh and Annexure P-9 is the affidavit of Jagtar Singh. Evidence is also required to opine whether Bagga Singh son of Jawala Singh or Bagga Singh son of Mula Singh was the owner of the land. Dispute is also regarding genuineness of power of attorney in favour of Jagir Singh, brother of Ajit Singh, son-in-law of Banta Singh, petitioner No.1. In case Bagga Singh son of Mula Singh, grand father of respondent No.2, was the owner of the land, then power of attorney dated 15.6.1999 is forged and fabricated, because as per record, Banta Singh had died in the year 1973. If Bagga Singh son of Jawala Singh was the owner of the land, then the Court is to see whether Bagga Singh son of Jawala Singh had died before execution of power of attorney dated 15.6.1999 or he had died after execution of power of attorney dated 15.6.1999 in favour of Jagir Singh. Evidence is also required as to why power of attorney was got executed in favour of Jagir Singh, brother of Ajit Singh, son-in-law of Banta Crl.Misc.No.M-23756 of 2008 8 Singh, petitioner No.1. If petitioners had intention to purchase the land, then sale deed could easily be got executed directly from the owner and if the land was rightly purchased from the real owner, then as per compromise before the panchayat, no idea to execute sale deed dated 18.5.2004 by petitioner No.1 in favour of Joginder Singh. Petition under Section 482 Cr.P.C. is to be accepted if taking the allegation of complaint as correct one without evidence, the Court is of the opinion that prima facie no case is made out. When evidence is required to settle the controversy, then FIR is not to be quashed, particularly when the matter is under investigation. At this stage, nothing can be said whether cancellation report is to be submitted or challan is to be presented. When there is a mixed question of law and facts and evidence is required to settle the controversy, then I am of the opinion that no ground to quash the FIR. In the light of above discussion, petition being without merit is dismissed. 29.10.2009 ( JORA SINGH ) pk JUDGE