High Court of Punjab and HaryanaCRR/3546/2017dismissed

Mahipal v. State Of Haryana And ANR

2024-02-26Mr. Justice Kuldeep Tiwari16 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH *** CRR-3546-2017

Reserved on: 05.02.2024

Date of Pronouncement: 26.02.2024

MAHIPAL -Petitioner

Versus

STATE OF HARYANA AND ANR.

-Respondents

CORAM:

HON'BLE MR. JUSTICE KULDEEP TIWARI Argued by: Mr. Sanjiv Kumar Aggarwal, Advocate and Mr. Tejas Bansal, Advocate for the petitioner.

Mr. Bhupender Singh, D.A.G., Haryana.

Mr. Abhinav Singla, Advocate for Mr. Amit Goyal, Advocate for the respondent No.2.

*** KULDEEP TIWARI, J.

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SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER 8.

At the very outset, the learned counsel for the petitioner has argued that, apart from the impugned summoning order, even the basic order dated 26.10.2015, whereby, the learned trial Court concerned had sent the complaint under Section 156(3) to the S.H.O. concerned, and whereupon, the present FIR was registered, is also absolutely illegal and deserves to be set aside, inasmuch as, there was non-compliance of Section 154(1) and Section 154(3) of the Cr.P.C. To substantiate this argument, he has placed reliance upon judgment titled as "Mrs. Priyanka Srivastava V. State of U.P. & Others", 2015(2) R.C.R. (Criminal) 1034, wherein, the Hon'ble Supreme Court has observed that "There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3)."

10.

The learned counsel for the petitioner has further argued that, despite the petitioner being declared innocent by the investigating officer, and, despite there being lack of any cogent evidence even remotely indicative of petitioner's complicity, yet the learned revisional court concerned has erred in summoning the petitioner, merely on a flimsy ground that

. In fact, the petitioner was merely an attesting witnesses to the agreement to sell dated 07.09.2015 and there is not an iota of evidence available on record suggestive of any inference that either the petitioner was a beneficiary of the alleged fraud, or, he had conspired with the main accused Dayaram in commission of the alleged crime.

11.

To lend vigour to his above made argument, the learned counsel for the petitioner has drawn attention of this Court towards the order dated (

)

# The final argument, as raised by the learned counsel for the petitioner, is grooved in the factum that, the complainant/respondent No.2 had, in his cross-examination, made an indirect admission qua his entering into an agreement with Gurmeet Singh. Since no suit for specific performance was filed, therefore, the present FIR, which derives its origin from a purely civil dispute, has been deliberately camouflaged as a criminal litigation, just to blackmail the present petitioner. SUBMISSIONS OF LEARNED STATE COUNSEL, AND, LEARNED COUNSEL FOR THE COMPLAINANT/RESPONDENT NO.2 13.

Per contra, the learned State counsel, who is assisted by the learned counsel for the complainant/respondent No.2, has opposed the arguments made by the learned counsel for the petitioner. First of all, he has assailed the maintainability of the instant revision petition, on the ground that, there is no provision for maintaining a revision against a revisional order. Furthermore, by drawing attention of this Court towards the date of

purchase of stamp paper of the sale deed dated 14.09.2015, i.e. 03.09.2015, which is well prior to the date of execution of agreement to sell dated 07.09.2015, he has argued that since the petitioner was an attesting witness to the agreement to sell dated 07.09.2015, and, to the sale deed dated 14.09.2015, therefore, he was acting in conspiracy with co-accused Dayaram to defraud the complainant/respondent No.2. Accordingly, a prayer is made that the instant revision petition be dismissed, being devoid of merits.

ANALYSIS 14.

15.

The scope of Section 319 of the Cr.P.C. has been considered and enunciated by the Hon'ble Supreme Court and by this Court also, in a catena of judgments, whereupon, it has been held that, during the pendency of inquiry or trial, the trial Court has jurisdiction to proceed against a person for the offence, which he appears to have committed, if, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that such person, not being the accused, has committed any offence, for which he could be tried together with the accused, under Section 319(1) of the Cr.P.C.

16.

The Hon'ble Supreme Court in "Sohan Lal vs State of Rajasthan", AIR 1990 SC 2158, while explaining the scope of Section 319 of the Cr.P.C., has held that, this Section empowers the trial Court to

proceed against a person, not being the accused, "appearing to be guilty" of an offence. The relevant extract of Sohan Lal's judgment is extracted hereinafter:- "This section empowers the Court to proceed against persons not being the accused appearing to be guilty of offence. Sub-sections (1) and (2) of this section provide for a situation when a Court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose.

It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the section is wide enough to include cases instituted on private complaint."

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REASONS FOR DISMISSING THE INSTANT PETITION 19.

Insofar as the issue of maintainability of the instant revision petition is concerned, it is undoubtedly true that the Code of Criminal Procedure does not endow any right or remedy to a litigant to maintain a second revision petition. In the instant case also, though the petitioner could have assailed the impugned revisional summoning order through invoking the provisions of Section 482 of the Cr.P.C., however, be that as it may, this Court is bestowed ample powers to treat the instant revision petition as a petition cast under Section 482 of the Cr.P.C. Consequently, the instant revision petition is being decided by treating it to be a petition under Section 482 of the Cr.P.C.

20.

Now proceeding further, though the prime argument of the learned counsel for the petitioner relates to the basic order dated 26.10.2015 being grooved with absolute illegality, owing to infringement of Section 154(1) and Section 154(3) of the Cr.P.C., however, this argument is liable to be rejected, primarily on the ground that, the said order has not been

challenged before this Court. Therefore, when the petitioner has, since 2015 uptil today, chosen not to assail the validity of the order dated 26.10.2015, coupled with the fact that, pursuant to the registration of the present FIR, he had joined investigation and acquired exoneration, this Court refrains from making any observation qua validity of the order dated 26.10.2015. 21.

Since the other arguments raised by the learned counsel for the petitioner are interconnected, therefore, they are being adjudicated together. 22.

To the considered mind of this Court, the hereinafter extracted reasoning, as adopted by the learned Magistrate concerned, for exonerating the petitioner is factually incorrect

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23.

What has constrained this Court to negate the reasoning (supra) of the learned Magistrate concerned, is that, it emanates from the record that, though Baldev Singh was undoubtedly also an attesting witness along with the present petitioner, to the agreement to sell dated 07.09.2015, however, he was neither an attesting witness to the sale deed dated 14.09.2015, nor the alleged receipt/writing qua cancellation of agreement to sell dated 07.09.2015 bears his signatures.

24.

The attesting witness Baldev Singh, while deposing as PW5, has proved the execution of the agreement to sell dated 07.09.2015, besides has verified the factum qua payment of Rs.1,15,00,000/- by the complainant as earnest money.

25.

Now, insofar as culpability of the petitioner is concerned, who is a relative of co-accused Dayaram, the same gains substantiation from the testification of the complainant, who, while deposing as PW6, testified that pursuant to execution of the agreement to sell dated 07.09.2015 and receipt of earnest money, co-accused Dayaram did not execute the sale deed, rather he, with a mala fide intention to commit fraud and to conveniently escape the rigor of law, colluded with the present petitioner and forged a receipt/writing qua cancellation of the agreement to sell (supra). 26.

Moreover, the mala fide intention of the co-accused Dayaram and the present petitioner could also be gauged from the testimony of PW4 Gurmeet Singh, in whose favour co-accused Dayaram had executed the sale deed dated 14.09.2015, inasmuch as, he specifically deposed that vendor/co-accused Dayaram had agreed to sell him his land 15 days prior to execution of sale deed (supra), whereupon, he had purchased the stamp paper for sale deed on 03.09.2015, i.e. prior to execution of the agreement to sell (supra) with the complainant. Therefore, the inference, as ensues from the testimony of PW4 Gurmeet Singh, is that, the co-accused Dayaram had, under a pre-planned conspiracy with the present petitioner, made the complainant a prey of his fraud.

27.

Now, let's advert to the validity of the receipt/writing qua cancellation of agreement to sell dated 07.09.2015, which is allegedly forged and bears forged signatures of the complainant. During the course of investigation, the receipt/writing (supra) was sent to the F.S.L., Madhuban along with standard signatures of the complainant, and, as per the F.S.L. report, the receipt/writing (supra) does not bear the signatures of the complainant, rather it bears the signatures of present petitioner.

28.

In view of the above, this Court does not have any hesitation to conclude that the reasoning adopted by the learned Magistrate concerned, thereby declining to summon the present petitioner, is incorrect and contrary to the evidence available on record. The evidence available on record is sufficient for summoning and subjecting the petitioner to face trial along with co-accused Dayaram, besides it also ably passes the test, as laid down by the Hon'ble Supreme Court, in

'( FINAL ORDER 29.

For all the reasons (supra), this Court does not find any illegality or perversity in the impugned summoning order and is constrained to dismiss the instant petition. Consequently, the instant revision petition is dismissed, and, the impugned summoning order dated 01.09.2017 is hereby affirmed and maintained.

30.

It is clarified that the observations made hereinabove are only meant to evaluate the legality of the impugned order, as also to find out whether there is sufficient evidence for subjecting the petitioner to face trial, in pursuance of his summoning under Section 319 of the Cr.P.C. The learned trial Court shall not be influenced by any of the observations (supra), and, shall make its own independent final decision, after appreciation of the entire evidence, in accordance with law. (KULDEEP TIWARI) JUDGE 26.02.2024 devinder Whether speaking/reasoned: Yes/No Whether reportable: Yes/No