High Court of Punjab and Haryana, Chandigarh
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THE STATE OF PUNJAB & ANR. v. Mr.T.S.Sangha, - CRR-434-1990  RD-P&H 1684 (16 March 2006)
DATE OF DECISION: 22.3.2006
NIRMAL SINGH ...PETITIONER
THE STATE OF PUNJAB & ANR. ...RESPONDENTS
CORAM:- HON'BLE MR.JUSTICE MEHTAB S.GILL
PRESENT:-Mr.T.S.Sangha, Advocate for the petitioner.
Mr.Manvinder Singh Sidhu, Senior Deputy Advocate General, Punjab.
This is a revision against the judgment of the Additional Sessions Judge, Faridkot, whereby he convicted Nirmal Singh and Gurdip Singh under Sections 120-B, 467, 468 and 471 IPC and sentenced him to undergo imprisonment to a maximum sentence of three years under various Sections.
Learned counsel for the petitioner has stated that Gurdip Singh has since died and thus the petition against him has abated.
The prosecution case in brief is that the petitioner was working as Secretary of the Giljewala Co-operative Agriculture Service Society Limited, Giljewala (hereinafter called "the Society"). Complainant had deposited outstanding amount against him towards the society on 22.6.1985. He cleared all the debts. Thereafter, he did not take any loan from the society. On 8.10.1985, petitioner along with the Inspector of the society came to his house and demanded a sum of Rs.7003-10 Paisas, stating that the amount was due in respect of 65 bags of urea fertilizer taken by him from the society on 12.7.1985, vide Bill No.62 against Cheque No.06598 dated 12.7.1985. Complainant stated that he had not taken any such loan and that he did not owe anything to the society. Next day, he went to the office of the society and to the bank and came to know that Nirmal Singh and Gurdip Singh (since dead) accused forged the aforesaid bill and the cheque. Thumb impressions of the complainant were forged on these documents.
Complainant filed a complaint and to prove his case brought into the witness box Gurjant Singh as PW1, Sub Inspector Natha Singh as PW2, Dewan K.S.Puri as PW3, complainant himself as PW4 and A.S.Aulakh, Advocate as PW5.
I have heard learned counsel for the parties and perused the record and the judgment.
The case arises out of a private complaint filed by one Hazoora Singh. He has stated that on 8.10.1985 Nirmal Singh petitioner, who was working as Secretary of the Giljewala Co-operative Agriculture Service Society Limited, Giljewala, accompanied by an Inspector of the Co- operative Department, came to him and demanded a sum of Rs.7003-10 Paisas saying that the amount relates to 65 bags of urea fertilizers taken by him on loan on 12.7.1985 vide Bill No.62 against Cheque No.06598 dated 12.7.1985. The complainant alleged that he neither received any fertilizer nor presented the cheque and according to him, the cheque was forged.
Hazoora Singh appeared as PW4 and deposed as under:- "Nirmal Singh is maternal grandson of Giljewala. He was friendly with my son Balwinder Singh. My papers were in a bag hanging by a Killi. Nirmal Singh might have stolen my cheque book from there.
In cross-examination, he said, I am illiterate. I have a son who is living with me. Had my son being separate. I would have been dodged.......I had given report about lost of cheque to Assistant Registrar and had moved a written complaint but I had not kept its copy......My son drinks and takes meat and has bad society....."
The truth is that Hazoora Singh's son Balwinder Singh came to the Society and presented a cheque, thumb marked by his father saying that his father was sick and was unable to move about, therefore, he has brought the cheque and he obtained 65 bags of Urea fertilizers on behalf of his father. This fact is supported by the evidence of Gurcharan Singh, DW5,, who has stated as under:-
"I am a member of CASS Giljewala. I know Hazoora Singh, complainant. He is member of the Society. I know Balwinder Singh son of the complainant also. He is a co-opted member of the Society. The complainant and his son have been getting fertilizers from the Society. Ex.P1 was brought by Balwinder Singh son of the complainant. He had represented that his father was ill and that he could not move and that he had obtained the thumb impression of his father. Balwinder Singh had signed in the register after getting the fertilizer. I was present there. The son of the complainant was a defaulter of the Society. His warrants were issued."
Both the Courts below did not refer to this evidence and did not consider it. Petitioner is entitled to have his evidence considered also, which the courts below have not done so. It has been so held by this Court in Beant Singh and others Vs. State of Punjab 1985 (2) CLR 335. This judgment was based on a Supreme Court Judgment of Chhote Lal and another vs. State of Punjab, AIR 1979 Supreme Court 1494. In paras 5 and 6 of this judgment, the Court has held that the defence evidence is to be considered also.
There is an unexplained and inordinate delay in filing of the complaint. Complainant himself stated that he came to know about the offence on 8.10.1985 but complaint was filed on 11.12.1985.
It appears that Balwinder Singh son of Hazoora Singh obtained the fertilizer by presenting the cheque allegedly thumb marked by his father. The money went into the account of the Society. No money has been embezzled in this case. The sole question is whether Balwinder Singh got the urea fertilizer bags or not. There is no evidence led by the complainant that his son did not get the bags issued whereas there was defence evidence that Balwinder Singh got the bags issued by presenting the cheque. The cheque book is always in the custody of the member. The petitioner had no access to it. It is far fetched to believe that the petitioner would get the cheque book stolen through the son of the complainant, as alleged by the complainant, especially when his son is not an accused in this case. Taking advantage of the fact that the cheque was not thumb marked by Hazoora Singh, he filed the complaint to avoid the recovery of debt.
Hazoora Singh did not pay the debt and the matter was referred to arbitration. The award was passed against Hazoora Singh that he had obtained the fertilizers and was not paying the amount. This has come in the evidence of Jabarjang Singh, Sub Inspector, Co-operative Society Khunan, who appeared as DW1. The relevant portion of his statement is as below:-
"The Salesman issues receipts whenever a member purchases fertilizer and makes an entry in the passbook. There is an entry in the passbook about issuing of 65 bags of fertilizers and cheque No.6598 for Rs.7003/-. This receipt was issued by Gurdip Singh which I identify. It is the duty of the Salesman to issue receipts and cheques. Cheque book and passbook remain with the member, the outstanding against the complainant was verified by Mohinder Singh and the son of the complainant had signed in the relevant register. Balwinder Singh son of Hazoora Singh, complainant is the member of the Sabha. A resolution is to be passed for getting the award. Balwinder Singh son of Hazoora Singh had signed the resolution against the complainant for the award. There was an award about this, case Ex.D4 is the correct copy of the statement. The cheque attested by Nirmal Singh, Secretary. Attestation is done if person is known."
There is evidence of DW2 Mohinder ASI. He deposed in the following terms:
"I had remained posted as a ASI of Agricultural Service Society, Giljewala. I had gone to the house of Hazoora Singh on 15.10.85 and had confirmed the loan. Balwinder Singh sons of Hazoora Singh met me and represented that his father was ill and he would confirm the accounts. There is an entry to that effect at page 11."
Chand Singh, Clerk of Co-operative Society Muktsar, who appeared as DW3 proved the award against Hazoora Singh and deposed as below:-
"I have brought the record of the award of Hazoora Singh, complainant. Its photocopy is Ex.D5. Hazoora Singh did not challenge it in appeal. The proceedings are started after notice.
The Arbitrator gives award after detailed inquiry as to whether the amount is due."
The award under the Co-operative Society is a substitute of civil proceedings. It is more or less like a decree of a civil court, because award amount is executable. In this case, the amount has to be realized from Hazoora Singh and Hazoora Singh never filed any appeal against the said award, which means, he accepted the liability. A plea has been raised that the award was ex parte. If Hazoora Singh claims that he was not served, he could very well challenge the award from the date it came to his knowledge, but he did not do so. It suggests that he had reconciled to the award against him and that is why the matter was compromised between the complainant and the accused during the pendency of this revision petition.
The impugned order/judgment are not based on the correct appreciation of evidence.
The petitioner acquitted of the charges framed against him.
Appeal is allowed.
( MEHTAB S.GILL )
Whether to be referred to reporter? Yes/No
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