Present: Mr. Beant Singh Advocate Vs. Harbans Singh ........ Petitioner - Court Judgment

SooperKanoon Citationsooperkanoon.com/1153901
CourtPunjab and Haryana High Court
Decided OnJun-30-2014
AppellantPresent: Mr. Beant Singh Advocate
RespondentHarbans Singh ........ Petitioner
Excerpt:
crl. misc. no.m16493of 2012 (o&m) 1 in the high court of punjab and haryana at chandigarh -.- crl. misc. no.m16493of 2012 (o&m) date of decision: 30.06.2014 harbans singh .......petitioner versus state of punjab and another .......respondents coram: hon'ble mrs.justice rekha mittal -.- present: mr.beant singh, advocate for the petitioner mr.neeraj sharma, aag, punjab for the respondent – state mr.r l batta, senior advocate with mr.nikhil batta, advocate for respondent no.2 -.- 1. whether reporters of local papers may be allowed to see the judgment?. 2. to be referred to the reporter or not?. 3. whether the judgment should be reported in the digest?. rekha mittal, j. bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh crl. misc. no.m16493of 2012 (o&m) 2 the petitioner has filed the instant petition while invoking section 482 of the code of criminal procedure (in short, 'cr.p.c.') for quashing of fir no.13 dated 26.01.2012 (annexure p4) registered at police station baghapurana, district moga for offence punishable under section 420 of indian penal code (in short, 'ipc) and proceedings emanating therefrom. counsel for the petitioner contends that bhajan singh, father of the petitioner, was married with bhupinder kaur and out of this wedlock two children, i.e., the petitioner and his sister daljit kaur were born. the mother of the petitioner unfortunately died and his sister was married and leading a happy married life. the father of the petitioner was residing with the petitioner and passed away on 09.07.2011. the petitioner, produced the death certificate of his father, got the land mutated in his name. ravinderjit kaur, respondent no.2 filed a civil suit in the court at moga, in which, the mutation sanctioned in favour of the petitioner was challenged by claiming herself to be the widow of bhajan singh, father of the petitioner. the father of the petitioner never performed marriage with respondent no.2. the instant fir was lodged at the behest of respondent no.2 during pendency of civil suit with a view to put pressure upon the petitioner to succumb to the illegal demand of respondent no.2 to inherit 1/3rd share in the property left behind by deceased bhajan singh. it is argued with vehemence that even if the allegations in the fir are taken as correct on its face value, the same do not constitute offence under section 415 ipc punishable under section 420 thereof. it is further argued that the criminal proceedings initiated by respondent no.2 are nothing but an abuse and misuse of bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh crl. misc. no.m16493of 2012 (o&m) 3 process of law, therefore, liable to be quashed. counsel for respondent no.2, on the contrary, contends that the petitioner was fully aware that after death of firs.wife of bhajan singh, he performed marriage with respondent no.2 in 2004 and since then, bhajan singh and respondent no.2 had been residing as husband and wife. bhajan singh during his life time dis-inherited the petitioner as he was indulged in bad habits and executed a will dated 09.11.2010 in favour of respondent no.2 whereby he bequeathed his entire property in her favour in lieu of services rendered by her to said bhajan singh. it is argued with vehemence that the petitioner filed a false affidavit before the concerned revenue authority to allege that he is the sole heir of the deceased and got sanctioned mutation thereby dis-entitling the complainant of her right to 1/3rd share in the property left behind by deceased bhajan singh. it is further argued that disputed questions of fact raised by the petitioner cannot be decided in proceedings under section 482 cr.p.c.and it is for the trial court to decide culpability of the petitioner after adducing evidence by the parties. i have heard counsel for the parties and perused the records. the petitioner is, admittedly, the son of deceased bhajan singh who passed away in july 2011. the petitioner approached the concerned revenue authority for sanctioning of mutation in regard to estate left behind by deceased bhajan singh by claiming himself to be the sole legal heir of said bhajan singh. a due consideration of the allegations set up in the fir as well as submissions made by counsel for respondent no.2 makes it evident that the only grievance of respondent no.2 is that the petitioner bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh crl. misc. no.m16493of 2012 (o&m) 4 wrongly and illegally claimed himself to be the sole heir of deceased bhajan singh by concealing the fact that said bhajan singh also left behind respondent no.2 as his legal heir being his widow and got sanctioned mutation in his name. now the question arises, whether the act of the petitioner in claiming himself to be the sole heir of the deceased and getting mutation sanctioned in his favour would constitute offence under section 415 ipc punishable under section 420 thereof. in order to constitute offence punishable under section 420 ipc, the complainant has to prove essential ingredients of offence of cheating defined in section 415 ipc and those ingredients are extracted hereinbelow:- “i) deception of a person either by making a false or misleading representation or by other action or omission; ii) fraudulently or dishonestly inducing any person to delivery and property; or iii) to consent that person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.”. there is no dispute about settled position of law that mutation is not evidence of title for it neither creates nor extinguish right of ownership. on the contrary, the mutation is entered for fiscal purposes. if the allegations levelled by respondent no.2 are taken as correct on its face value, the same do not constitute the ingredients of offence of cheating, defined in section 415 ipc. it is none of the plea of respondent no.2 that the petitioner made any false or misleading bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh crl. misc. no.m16493of 2012 (o&m) 5 representation to her and thereby fraudulently or dishonestly induced her to deliver any property or to consent for retaining any property or intentionally induced respondent no.2 to do or omit to do anything which she otherwise would not do or omit. counsel for respondent no.2, despite a specific query raised by this court, failed to convince as to how, in the circumstances of the present case, the ingredients of offence under section 415 ipc are satisfied to hold trial of the petitioner for committing offence punishable under section 420 ipc. the petitioner, at best, can be said to have filed a false affidavit before the concerned revenue authority, claiming himself to be the sole legal heir of deceased bhajan singh when admittedly the deceased has left behind another class - i heir, namely the sister of the petitioner. so far as the claim of respondent no.2 that she performed marriage with bhajan singh and they were residing together as husband and wife or bhajan singh left behind a testament in her favour, these are disputed questions of fact which are yet to be adjudicated in the pending civil proceedings. this apart, respondent no.2 filed a civil suit in november 2011 claiming herself to be the legal heir of deceased on the basis of natural as well as testamentary succession but later in january 2012, the instant fir has been lodged, to be used as a pressure tactic for compelling the petitioner to accept the claim of respondent no.2 to give a share in the estate of the deceased. i find fortification to my observations from the submissions made by counsel for respondent no.2 that the petitioner should agree to give 1/3rd share in the property of bhajan singh to respondent no.2. bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh crl. misc. no.m16493of 2012 (o&m) 6 the hon'ble supreme court of india in state of haryana and others versus ch.bhajan lal and others.1992 air (sc)604, after considering the principles of law enunciated by the hon'ble supreme court of india in a series of decisions relating to exercise of extraordinary power under article 226 of the constitution or the inherent powers under section 482 of the code laid down the categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. however, it was held that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and flexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. the hon'ble court in sub paras 1 to 7 of para 108 of the aforestated judgment laid down those categories of cases by way of illustration. a relevant extract from sub para 3 of para 108 of the judgment is quoted thus:- “3. where the uncontroverted allegations made in the fir or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.”. when the facts and circumstances of the present case are examined in the light of sub para 3 extracted hereinbefore, it can be safely concluded that the present case is a fit case, wherein the impugned fir and proceedings emanating therefrom cannot be allowed to continue as the fir and evidence collected in support thereof do not disclose the commission of any offence and make out a case against the petitioner. in other wards, bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh crl. misc. no.m16493of 2012 (o&m) 7 continuation of the criminal proceedings, in the facts and circumstances of the instant case, are nothing but an abuse and misuse of process of law. for the aforesaid reasons, the petition is allowed, impugned fir no.13 dated 26.01.2012 (annexure p4) registered at police station baghapurana, district moga for offence punishable under section 420 of indian penal code (in short, 'ipc) and proceedings emanating therefrom are ordered to be quashed. (rekha mittal) judge 30.06.2014 mohan bimbra mohan lal 2014.07.04 13:45 i attest to the accuracy and integrity of this document chandigarh
Judgment:

Crl.

Misc.

No.M16493of 2012 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl.

Misc.

No.M16493of 2012 (O&M) Date of decision: 30.06.2014 Harbans Singh .......Petitioner Versus State of Punjab and another .......Respondents Coram: Hon'ble MRS.Justice Rekha Mittal -.- Present: Mr.Beant Singh, Advocate for the petitioner Mr.Neeraj Sharma, AAG, Punjab for the respondent – State Mr.R L Batta, Senior Advocate with Mr.Nikhil Batta, Advocate for respondent No.2 -.- 1.

Whether Reporters of local papers may be allowed to see the judgment?.

2.

To be referred to the Reporter or not?.

3.

Whether the judgment should be reported in the Digest?.

Rekha Mittal, J.

Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl.

Misc.

No.M16493of 2012 (O&M) 2 The petitioner has filed the instant petition while invoking Section 482 of the Code of Criminal Procedure (in short, 'Cr.P.C.') for quashing of FIR No.13 dated 26.01.2012 (Annexure P4) registered at Police Station Baghapurana, District Moga for offence punishable under Section 420 of Indian Penal Code (in short, 'IPC) and proceedings emanating therefrom.

Counsel for the petitioner contends that Bhajan Singh, father of the petitioner, was married with Bhupinder Kaur and out of this wedlock two children, i.e., the petitioner and his sister Daljit Kaur were born.

The mother of the petitioner unfortunately died and his sister was married and leading a happy married life.

The father of the petitioner was residing with the petitioner and passed away on 09.07.2011.

The petitioner, produced the death certificate of his father, got the land mutated in his name.

Ravinderjit Kaur, respondent No.2 filed a civil suit in the Court at Moga, in which, the mutation sanctioned in favour of the petitioner was challenged by claiming herself to be the widow of Bhajan Singh, father of the petitioner.

The father of the petitioner never performed marriage with respondent No.2.

The instant FIR was lodged at the behest of respondent No.2 during pendency of civil suit with a view to put pressure upon the petitioner to succumb to the illegal demand of respondent No.2 to inherit 1/3rd share in the property left behind by deceased Bhajan Singh.

It is argued with vehemence that even if the allegations in the FIR are taken as correct on its face value, the same do not constitute offence under Section 415 IPC punishable under Section 420 thereof.

It is further argued that the criminal proceedings initiated by respondent No.2 are nothing but an abuse and misuse of Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl.

Misc.

No.M16493of 2012 (O&M) 3 process of law, therefore, liable to be quashed.

Counsel for respondent No.2, on the contrary, contends that the petitioner was fully aware that after death of fiRs.wife of Bhajan Singh, he performed marriage with respondent No.2 in 2004 and since then, Bhajan Singh and respondent No.2 had been residing as husband and wife.

Bhajan Singh during his life time dis-inherited the petitioner as he was indulged in bad habits and executed a will dated 09.11.2010 in favour of respondent No.2 whereby he bequeathed his entire property in her favour in lieu of services rendered by her to said Bhajan Singh.

It is argued with vehemence that the petitioner filed a false affidavit before the concerned revenue authority to allege that he is the sole heir of the deceased and got sanctioned mutation thereby dis-entitling the complainant of her right to 1/3rd share in the property left behind by deceased Bhajan Singh.

It is further argued that disputed questions of fact raised by the petitioner cannot be decided in proceedings under Section 482 Cr.P.C.and it is for the trial Court to decide culpability of the petitioner after adducing evidence by the parties.

I have heard counsel for the parties and perused the records.

The petitioner is, admittedly, the son of deceased Bhajan Singh who passed away in July 2011.

The petitioner approached the concerned revenue authority for sanctioning of mutation in regard to estate left behind by deceased Bhajan Singh by claiming himself to be the sole legal heir of said Bhajan Singh.

A due consideration of the allegations set up in the FIR as well as submissions made by counsel for respondent No.2 makes it evident that the only grievance of respondent No.2 is that the petitioner Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl.

Misc.

No.M16493of 2012 (O&M) 4 wrongly and illegally claimed himself to be the sole heir of deceased Bhajan Singh by concealing the fact that said Bhajan Singh also left behind respondent No.2 as his legal heir being his widow and got sanctioned mutation in his name.

Now the question arises, whether the act of the petitioner in claiming himself to be the sole heir of the deceased and getting mutation sanctioned in his favour would constitute offence under Section 415 IPC punishable under Section 420 thereof.

In order to constitute offence punishable under Section 420 IPC, the complainant has to prove essential ingredients of offence of cheating defined in Section 415 IPC and those ingredients are extracted hereinbelow:- “i) deception of a person either by making a false or misleading representation or by other action or omission; ii) fraudulently or dishonestly inducing any person to delivery and property; or iii) to consent that person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.”

.

There is no dispute about settled position of law that mutation is not evidence of title for it neither creates nor extinguish right of ownership.

On the contrary, the mutation is entered for fiscal purposes.

If the allegations levelled by respondent No.2 are taken as correct on its face value, the same do not constitute the ingredients of offence of cheating, defined in Section 415 IPC.

It is none of the plea of respondent No.2 that the petitioner made any false or misleading Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl.

Misc.

No.M16493of 2012 (O&M) 5 representation to her and thereby fraudulently or dishonestly induced her to deliver any property or to consent for retaining any property or intentionally induced respondent No.2 to do or omit to do anything which she otherwise would not do or omit.

Counsel for respondent No.2, despite a specific query raised by this court, failed to convince as to how, in the circumstances of the present case, the ingredients of offence under Section 415 IPC are satisfied to hold trial of the petitioner for committing offence punishable under Section 420 IPC.

The petitioner, at best, can be said to have filed a false affidavit before the concerned revenue authority, claiming himself to be the sole legal heir of deceased Bhajan Singh when admittedly the deceased has left behind another class - I heir, namely the sister of the petitioner.

So far as the claim of respondent No.2 that she performed marriage with Bhajan Singh and they were residing together as husband and wife or Bhajan Singh left behind a testament in her favour, these are disputed questions of fact which are yet to be adjudicated in the pending civil proceedings.

This apart, respondent No.2 filed a civil suit in November 2011 claiming herself to be the legal heir of deceased on the basis of natural as well as testamentary succession but later in January 2012, the instant FIR has been lodged, to be used as a pressure tactic for compelling the petitioner to accept the claim of respondent No.2 to give a share in the estate of the deceased.

I find fortification to my observations from the submissions made by counsel for respondent No.2 that the petitioner should agree to give 1/3rd share in the property of Bhajan Singh to respondent No.2.

Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl.

Misc.

No.M16493of 2012 (O&M) 6 The Hon'ble Supreme Court of India in State of Haryana and Others versus Ch.Bhajan Lal and otheRs.1992 AIR (SC)604, after considering the principles of law enunciated by the Hon'ble Supreme Court of India in a series of decisions relating to exercise of extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 of the Code laid down the categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

However, it was held that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and flexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

The Hon'ble Court in sub paras 1 to 7 of para 108 of the aforestated judgment laid down those categories of cases by way of illustration.

A relevant extract from sub para 3 of para 108 of the judgment is quoted thus:- “3.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.”

.

When the facts and circumstances of the present case are examined in the light of sub para 3 extracted hereinbefore, it can be safely concluded that the present case is a fit case, wherein the impugned FIR and proceedings emanating therefrom cannot be allowed to continue as the FIR and evidence collected in support thereof do not disclose the commission of any offence and make out a case against the petitioner.

In other wards, Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh Crl.

Misc.

No.M16493of 2012 (O&M) 7 continuation of the criminal proceedings, in the facts and circumstances of the instant case, are nothing but an abuse and misuse of process of law.

For the aforesaid reasons, the petition is allowed, impugned FIR No.13 dated 26.01.2012 (Annexure P4) registered at Police Station Baghapurana, District Moga for offence punishable under Section 420 of Indian Penal Code (in short, 'IPC) and proceedings emanating therefrom are ordered to be quashed.

(Rekha Mittal) Judge 30.06.2014 mohan Bimbra Mohan Lal 2014.07.04 13:45 I attest to the accuracy and integrity of this document Chandigarh