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VIJAY KUMAR SINGLA versus STATE OF PUNJAB & ANR.

High Court of Punjab and Haryana, Chandigarh

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Vijay Kumar Singla v. State of Punjab & Anr. - CRM-55425-M-2005 [2006] RD-P&H 11090 (22 November 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of Decision: 22.11.2006

Vijay Kumar Singla ...Petitioner

Versus

State of Punjab & Anr. ...Respondents

CORUM: HON'BLE MR.JUSTICE RANJIT SINGH

Present:- Mr.P.S.Jammu, Advocate for the petitioner.

Mr.M.C.Berry, Senior D.A.G., Punjab.

Mr.Yogesh Goyal, Advocate for respondent No.2.

RANJIT SINGH, J.

Aggrieved against the action of registering an FIR against him on the basis of a misleading information given by respondent No.2, the petitioner has filed the present petition seeking quashing of the same. FIR No.269 dated 15.9.2004 was registered against the petitioner under Sections 420, 465, 467, 468, 471 and 120-B IPC at Police Station Dhuri, District Sangrur. How an innocent person can be frustrated and made to face criminal prosecution without committing any criminal misconduct can well be seen from the present case. Allegations against the petitioner are that wrong mutation was got sanctioned by him in his favour in respect of the land measuring 1 Bigha 11 Biswas bearing Khasra Nos.5105/587, 588 and 590 after cancellation of mutation No.18110 dated 13.4.1989 standing in the name of Sanjiv Kumar respondent No.2. The facts noticed hereinafter would show how misleading information led to registration of the present case against the petitioner.

Jyoti Rice Mill (hereinafter referred as Mill) owned by Sant Ram and Satish Kumar as partners took a loan of Rs.3 lacs from Punjab Financial Corporation (P.F.C.), which they did not care to repay. P.F.C.

thereafter filed an application under section 31 of the State Financial Corporation Act, 1951 for recovery of the said amount along with interest by putting on sale the mortgaged property of the Mill, which included movable and immovable assets. The application filed by P.F.C. was accepted by Additional District Judge, Sangrur and the properties of the erring Mill was put to auction vide his order dated 17.1.1990. In an auction held on 24.4.1990, the property of the Mill put on sale was purchased by the petitioner in two lots. The sale regarding machinery was confirmed but due to objections filed by complainant-respondent No.2 and his father Sant Ram (now deceased), the sale qua the land and building was not confirmed. The objection petition filed by respondent No.2 and his father, as stated, however, was dismissed on 10.2.2003 by the Additional District Judge (Fast Track Court), Sangrur. While rejecting the objections, Additional District Judge also confirmed the sale and directed that sale certificate in favour of the petitioner be issued. On the basis of the sale certificate dated 21.8.2003 issued in his favour, the petitioner moved an application for sanction of mutation before Assistant Collector 2nd

Grade, Dhuri. It is in this

background that the mutation in favour of the petitioner was entered into the revenue record after cancelling the earlier mutation. Respondent No.2 though had filed an FAO against the order passed by Additional District Judge, but no further trace of the same is available except that the said FAO was returned with certain objections and thereafter had not been refiled till the filing of the present petition. EFA No.8 of 2003, however, filed by Smt.Indira Devi, legal heir of Sant Ram (now deceased), who is also father of respondent No.2, was dismissed by this Court on 10.5.2005. Even CR No.3670 of 2004 filed against the issuance of warrant of possession by Additional District Judge, Sangrur was also dismissed by this Court. The said warrant of possession has since been complied with and the property mentioned therein delivered to the petitioner by the Court.

The grievance of the petitioner is that without disclosing the true facts and the developments, the impugned FIR has been lodged by respondent No.2 by giving misleading and wrong information against the petitioner. It may also need a notice that respondent No.2 had filed the objections basically on the ground that he had purchased 1 Bigha 11 Biswas of land bearing Khasra Nos.587, 588 and 590 from his father. It is on the basis of this sale in his favour that he had filed objections. While dealing with this objection petition, Additional District Judge, Sangrur found that the sale in favour of respondent No.2 did not have any effect on the auction as the identification of the property was not in dispute. He had further observed that the sale was held on 24.4.1990 and the objections were filed on 29.4.1991. The limitation for filing objections was 60 days and the same had expired by the time the objections were filed and, accordingly, the objections were also held barred by time. Additional District Judge was further right in holding that this sale was hit by provisions of Section 64 of the Transfer of Property Act on the principle of lis-pendence and thus was void against the right of the decree holder and the auction purchaser. It was also noticed that respondent No.2 being son of Sant Ram, who was put to notice for this auction and sale, could not be expected to be unaware of the proceedings that were in progress. It is in this background and being aggrieved against the registration of an FIR against him that present quashing petition has been filed.

Counsels for the parties have been heard.

Petitioner can rightly complain that he, who is an auction purchaser of the property ordered to be auctioned by the court is being put to trouble without any justification. As per counsel, the investigating agency was required to note the actual factual position but have failed to do so. As per counsel, while lodging the FIR, respondent No.2 has not made any mention to the order passed by ADJ Sangrur in favour of the petitioner and thus had got this FIR registered against him by providing misleading information. The land in question stated to have been sold by father to his son, had been purchased by the petitioner in auction and on the basis of sale certificate issued in his favour by Additional District Judge, Sangrur, the mutation had been got changed by him in his favour. In this factual background, counsel would urge that no offence can be made out and lodging of this FIR and proceedings consequent thereupon would be nothing but an abuse of the process of the Court.

Counsel for respondent No.2, on the other hand, has attempted to project that the land auctioned in favour of the petitioner was not the one which he had got mutated on his name and hence would urge that the action of petitioner in getting the mutation changed amounted to an offence under the Sections as mentioned in the FIR.

The submission made by counsel for respondent No.2 cannot be accepted being totally against the factual position in this case. While making submissions, he has completely lost sight of the decision of Additional District Judge, Sangrur while confirming the auction and for issuance of sale certificate in favour of the petitioner. It appears that respondent No.2 is taking advantage of clerical mistake in mentioning the measurement of the land purchased by the petitioner in auction and which had been ordered to be attached. As noticed by Additional District Judge, respondent No.2 had purchased 1 Bigha 11 Biswas of land in Khasra Nos.587, 588 and 590 and Sant Ram father of respondent No.2 had share in these khasra numbers, which he had already mortgaged with PFC Chandigarh. In the mortgage deed, however, the land is described in kanals and marlas but in Dhuri, the scale of measurement is in Bighas and Biswas.

It was, accordingly, observed and held by Additional District Judge, Sangrur that this was a clerical mistake. It was also noticed that in jamabandi for the year 1973-74, the area of khasra numbers was mentioned and it was not mentioned whether it is in kanals or bighas. Accordingly, it was held that it did not effect in any way the auction in favour of the petitioner because the identification of the property was not in dispute. Even the site plan had also been attached with the mortgage deed in which the boundaries of the mortgaged land and building were mentioned. The Court, as such, rightly found that the land purchased by respondent No.2 did not effect the right of the auction purchaser. The sale was said to be barred under Section 64 of the Transfer of Property Act. The bonafide purchaser, who has a sale certificate issued in his favour under the direction of the Court, is thus put to jeopardy of facing criminal prosecution. How could the police ignore the judgment passed by Additional District Judge and continue with the criminal proceedings against the petitioner defies logic. It is nothing but an abuse of the process of the Court. Strangely, it is noticed that complainant had filed an application before SSP Sangrur, who got the matter inquired through Incharge, Economic Offences Wing, SSP office, Sangrur. It was found during the enquiry that respondent No.2 had got executed this sale deed from his father after filing of the case by PFC.

Without disclosing anything about this enquiry, complainant is stated to have conspired with DSP, Dhuri and succeeded in lodging the FIR by giving wrong facts and misleading information. The finding given by ADJ that the land is in Bighas and Biswas but due to clerical mistake, was shown in marlas had also not been challenged by respondent No.2. In the enquiry, it was recommended that no action was required to be taken by the police.

The complainant-respondent was advised to pursue his matter before revenue department. The finding of the enquiry officer dt.8.3.2004 and the complaint of respondent No.2 was ordered to be filed. Yet respondent No.2 could succeed in getting the FIR registered on 15.9.2004 by giving an application to DSP Dhuri would in itself reveal the strange mode of police functioning. There cannot be much doubt that the present proceedings being pursued against the petitioner are an abuse of process of Court. Even it can not understand as to how change of mutation would amount to an offence under section 467 IPC and other related provisions in this regard. In the FIR, the allegations for offence under sections 420, 465, 467, 468, 471 have been made. Basically, the allegations of cheating and forgery are being urged. Section 465 IPC talks of forgery whereas Section 467 relates to forgery of valuable security. Accordingly, the offence of forgery of a valuable security as created under section 467 IPC can only be urged if mutation can be said to be a valuable security. If, on the other hand, mutation cannot be termed as valuable security then no offence under section 467 IPC can be made out against the petitioner. Valuable security as defined in Section 30 IPC denotes a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability or has not ascertained legal right. The mutation cannot be said to be a document whereby any title is created. In this case, there is no allegation that any document had been forged on the basis of which mutation was got changed.

Rather in this case no fault can be found with change of mutation got done at the instance of the petitioner. Change was on the basis of valid and legal document, which was supported by a finding of a civil court. Even upon complaint given by respondent No.2, which was got inquired from Economic Offences Wing of the District, it was found that no case for interference was made out and his complaint was ordered to be filed by SSP of the district. A DSP still registered an FIR against the petitioner would not reflect well on the function of the police. Copy of this finding allegedly containing the direction of SSP has been placed on record as Annexure P11.

It can thus be said that no case of cheating, forgery of valuable security or forgery for the purpose of cheating or using any forged document as genuine in this case is made out. Complainant, who is son of the person who had taken loan being well aware of the proceedings pending in the civil court could succeed in getting a case registered against a purchaser of property through Court would clearly reveal an unfair approach of the investigating agency. It may tend to cast a poor reflection on investigative agency. Allowing any proceedings to continue in this case would not only further enhance the misery of an innocent citizen but would lead to miscarriage of justice. This petition is, accordingly, allowed and FIR No.269 dated 15.9.2004 registered against the petitioner under Sections 420, 465, 467, 468, 471 and 120-B IPC at Police Station Dhuri, District Sangrur is hereby quashed. Since an innocent person has been saddled with this criminal liability making him to spend his resources upto this Court, it would be a fit case where this petition deserves to be allowed with cost, which is quantified as Rs.10,000/-. The same shall be paid to the petitioner by respondent No.2.

(Ranjit Singh)

Judge

22.11.2006

AS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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