Kashmir Singh vs Randhir Singh And Others

Manisha Batra, J

The instant petition has been filed by the petitioner under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (For short "BNSS") seeking quashing of order dated 05.04.2024 passed by the Court of learned Sessions Judge, Gurdaspur in Criminal Revision bearing CRR No. 54 of 2024, titled as Kashmir Singh vs. Randhir Singh and others, whereby prayer made by the present petitioner/complainant for setting aside the order dated 18.01.2024 passed by the Court of learned Judicial Magistrate 1st Class, Gurdaspur dismissing the Criminal Complaint bearing CIS No.COMI-108 of 2018, titled as Kashmir Singh v. Randhir Singh, filed under Sections 420, 467, 468, 471 and 120-B of IPC, had been declined and the revision petition was dismissed.

Brief facts relevant for the purpose of disposal of this petition are that the aforementioned complaint had been filed by the petitioner on the allegations that his father Sh. Anant Ram owned some immoveable properties. After his death, respondent No.1 Randhir Singh, who is brother of the petitioner/complainant, Baldev Singh and the petitioner became co-owners to the extent of equal shares in the said properties. They had filed a civil suit bearing No.126 of 1989 against Punjab State Electricity Board and others claiming themselves to be legal representatives of the deceased Anant Ram and the said suit was decreed in their favour. It is submitted that one property, which was owned by their father and is situated within the lal dora of Village Kahnuwan, Tehsil and District Gurdaspur, was jointly owned and possessed by the petitioner, his brother Baldev Singh and the respondent No.1. However, the respondent No.1 executed sale deed in respect of the said property in favour of his two sons i.e. the present respondents No.2 and 3 on 27.02.2006, thereby depriving and defeating the rights of the complainant and his brother Baldev Singh. By alleging that the respondents had committed offences of cheating and forgery, the petitioner, therefore, prayed for taking action in the matter.

After presentation of the complaint, preliminary evidence was produced by the petitioner. He examined himself as CW-1 besides producing CW-2 Rachpal Singh, Clerk, office of Joint Sub Registrar, Kahnuwan and while relying upon certain documents. On considering the evidence produced on record as well as the contentions raised by the petitioner, the learned trial Magistrate vide order dated 18.01.2024 dismissed the complaint by observing that no case for issuance of process was made out. Feeling aggrieved, the petitioner filed a revision petition before the Court of learned Sessions Judge, Gurdaspur, which too had been dismissed, vide impugned order dated 05.04.2024.

It is argued by learned counsel for the petitioner that the impugned orders are not sustainable in the eyes of law as while passing the same, the learned trial Court as well as the revisional Court ignored the fact that there was prima facie sufficient evidence on record to presume that the respondents in connivance with each other had cheated the petitioner and had also committed offences of forgery and use of forged documents. Rspondent No.1 was not absolute owner of the plot in question but had sold the same to his sons i.e. the other respondents while fully knowing that the petitioner and his another brother were also shareholders in the same. It is, therefore, argued that the impugned orders are liable to be set aside, the petition deserves to be accepted and that the respondents are liable to be summoned to face trial for commission of aforementioned offences.

This Court has heard the submissions made by learned counsel for the petitioner, besides going through the material placed on record.

At the outset, it is evident that the dispute arises out of a claim of co-ownership in respect of the property inherited from the father of the parties. The gravamen of the allegation is that respondent No.1, being one of the co-sharers, executed a sale deed in favour of his sons qua the property, allegedly beyond his share. The learned trial Court and learned revisional Court have concurrently held that such an act, even if assumed to be in excess of the actual share, would not by itself constitute the offences of forgery or cheating in the absence of the essential ingredients thereof. This Court finds no perversity in the said conclusion. The learned trial Court has rightly appreciated the scope of "forgery" by adverting to the legal position that execution of a document by a person in his own name, albeit claiming ownership over a property, does not amount to making of a "false document" within the meaning of law, unless there is impersonation or false authority. The complaint, even if taken at its face value, does not allege that respondent No.1 impersonated another person or executed the document under any fictitious authority. The essential ingredients of Sections 467, 468 and 471 IPC, therefore, are conspicuously absent.

Similarly, so far as the offence of cheating is concerned, there is no averment or material to indicate that the petitioner was deceived or dishonestly induced to deliver any property. As noticed by the Courts concerned, the alleged transaction is not between the complainant and the accused, but between the accused inter se and, thus, the foundational requirement of inducement is missing. What emerges, therefore, is essentially a dispute relating to civil rights arising from alleged improper alienation of joint property. The remedy, as rightly observed, lies in seeking appropriate relief before the competent civil Court. The mere use of expressions such as "fraud" or "forgery" in the complaint cannot, in the absence of foundational facts, convert a civil dispute into a criminal prosecution. The learned revisional Court has re-examined the matter within the permissible limits of its jurisdiction and has concurred with the findings of the learned trial Court holding that the case is squarely covered by settled principles of law and that no criminal offence is made out. This Court finds no illegality, impropriety or jurisdictional error in the impugned orders warranting interference. In exercise of powers under Section 528 BNSS, this Court is not inclined to re-appreciate the evidence or substitute its own view in the absence of manifest injustice or abuse of process, none of which is made out in the present case. Accordingly, the present petition, being devoid of merit, is dismissed.