Vijay Kumar Sharma vs U.T.Chandigarh

P.K. Jain, J.

This petition has filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for quashing FIR No. 173 dated 1.12.1992, registered at Police Station, Sector 39, Chandigarh, for the offences under sections 420/467/468/471/120B, Indian Penal Code, qua the petitioner, as well as the order dated 22.3.1995 (Annexure P5), passed by the Judicial Magistrate, Chandigarh, whereby the petitioner along with his coaccused has been charged for the aforesaid offences.

The facts necessary for the disposal of this petition are that the complainant Smt. Santosh Kumari is stated to have purchased plot No. 2395 situated in Dadu Majra Colony from one Piare Lal for a sum of Rs. 30,000/. According to the allegations levelled by Smt. Santosh Kumari, said Shri Piare Lal represented that he had purchased the plot in question from one Lattoo Ram son of Hardev Singh, under a power of attorney executed in his favour and was in possession of the said plot. Having been satisfied with the representation made by Shri Piare Lal, Smt. Santosh Kumari paid Rs. 30,000/ to Shri Piare Lal, who in turn executed a power of attorney in her favour and also handed over possession of the plot to her. She got constructed a house thereon. Later on, Piare Lal did not hand over the original power of attorney purported to have been executed by Lattoo Ram in his favour. Smt. Santosh Kumari made enquiry from Lattoo Ram son of Hardev Singh and discovered that this plot was never allotted to him nor he had transferred the same on power of attorney to Piare Lal. She also made enquiry from the Estate Office and it was discovered that the said plot was never allotted to Lattoo Ram. It has been alleged that Shri Piare Lal had cheated and defrauded Smt. Santosh Kumari of Rs. 30,000/. On these allegations, first information report in question was registered.

During investigation, it was revealed that according to Piare Lal a general power of attorney was executed in his favour by one Lattoo Ram son of Hardev Singh, resident of House No. 2395, Dadu Majra Colony on 11.1.1991 and the same was notarised by Sh. Gursharan Singh, the Notary Public, Chandigarh. It was also revealed that the petitioner was one of the two attesting witnesses of the said general power of attorney and he had identified Lattoo Ram before the Notary Public. It was discovered that some fake person was produced by Piare Lal and the general power of attorney was got fabricated by him. An agreement to sell is also alleged to have been executed by said Lattoo Ram in favour of Piare Lal which was signed by Kishan and Ajit Singh, two attesting witnesses. On the basis of these two documents, Piare Lal executed a power of attorney on 11.4.1991 in favour of Smt. Santosh Kumari and also executed an agreement to sell, as well as a receipt in respect of the balance of the sale consideration. During investigation, it has also been revealed that this plot was never allotted to Lattoo Ram, nor any such Lattoo Ram ever transferred this plot in favour of Piare Lal. After completing the investigation a charge sheet has been filed against Piare Lal and the present petitioner for the aforesaid offences. After hearing the parties, the Judicial Magistrate, by order dated 22.3.1995 (Annexure P5), came to the conclusion that a prima facie case to frame charge was made out against the accused persons and accordingly a charge for the aforesaid offences was framed against both the accused including the petitioner.

The petitioner has sought the quashing of the first information report as well as the charge (Annexure P5) qua him on the ground that on the basis of the allegations contained in the first information report and the material collected during investigation, no evidence has been collected to show that the petitioner ever entered into a conspiracy with Piare Lal to defraud Smt. Santosh Kumari. It has been stated in the petition that he was not a party to the transaction between Piare Lal and Smt. Santosh Kumari nor he was a party to the transaction purported to have been entered into between Lattoo Ram and Piare Lal. It has been further stated that the petitioner has been falsely implicated by the SHO of the Police Station at the instance of the fatherinlaw of the petitioner on account of his matrimonial dispute with his wife.

Notice was given to the respondents. I have heard the learned counsel for the parties and perused the record.

Shri H.S. Sirohi, Advocate, learned counsel for the petitioner, has argued that there is no allegation in the first information report that the petitioner ever entered into a conspiracy with Piare Lal to cheat or defraud Smt. Santosh Kumari, the complainant. It has been further argued by the learned counsel that during investigation no evidence has been collected to connect the petitioner with the commission of any offence, much less an offence of conspiracy. It has been, thus, argued that the petitioner ought to have been discharged. Thus, the learned counsel for the petitioner has argued that the order dated 22.3.1995 (Annexure P5), whereby a charge has been framed, is bad in law qua the petitioner.

On the other hand Shri R.S. Rai, the learned standing counsel for the respondent, has argued that the petitioner was an attesting witness to the general power of attorney purported to have been executed by Lattoo Ram in favour of Piare Lal, which ultimately gave an opportunity to Piare Lal to defraud Smt. Santosh Kumari. It has been further argued by the learned counsel that at this stage the Court is not to examine the evidence meticulously but is to see as to whether prima facie a case for trial is made out.

I have considered the respective arguments advanced at the Bar and have perused the record.

It is well settled law that at the stage of framing a charge, the trial Magistrate is not to examine meticulously the allegations and the evidence in support thereof, but is required to see if on the basis of the allegations and the material there is a ground to presume that the accused has committed an offence. If the answer to this question is in the affirmative, the Magistrate is bound to frame a charge.

The Apex court has considered this question in several decisions i.e. State of Bihar v. Ramesh Singh, AIR 1977 SC 2018; Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366; Superintendent and Legal Remembrancer v. Anil Kumar Bhuria, AIR 1980 SC 52; and Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, AIR 1990 SC 1962. What emerges from a reading of these decisions is that at the stage of framing charge, if there is a strong evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The accused cannot be discharged if from the first information report or complaint and the statement of the witnesses recorded under section 161 of the Code and from all other materials a prima facie case is made out against him. At the initial stage the truth, veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged and the standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of framing a charge. What the Court has to consider at this stage is only the sufficiency of the ground for proceeding against the accused and not whether materials on record are sufficient or adequate for conviction.

It may be clarified that in R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045, the Supreme Court while examining the scope of Sections 227, 239 and 245 of the Code relating to discharge in a trial (1) before a Court of Sessions; (2) of warrant cases; and (3) of summons cases, observed that in spite of difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, the charge has to be framed. Thus, to conclude, in the words of their Lordships in Niranjan Singh Karam Singh Punjabi''s case (supra), it is clear that at this stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

In the present case, the evidence which has been collected against the petitioner is that Lattoo Ram son of Hardev Singh had executed a power of attorney on 11.1.1991 in favour of Piare Lal in respect of the plot in question, and the petitioner was one of the two attesting witnesses on this document, and that the petitioner had identified the executant of that general power of attorney to be Lattoo Ram before the Notary Public. This is the entire evidence which has been collected during investigation qua the petitioner. The simple question arises as to whether this evidence, in itself, is enough to hold that a prima facie case to frame a charge for an offence of conspiracy to commit the offences under sections 420/467/468/471, IPC is made out against the petitioner.

An identical question had arisen before the Apex Court in Hira Lal Jain v. Delhi Administration, 1973 PLR 121. In that case, the petitioner was engaged by some persons for identifying them as claimants in an application made on their behalf to claim certain landacquisition compensation amount and the petitioner being an advocate, believing the statements of the claimants as true, filed his vakalatnama agreeing to act on their behalf. There was no evidence to show that there was prior knowledge on the part of the Advocate to say that the claimants were not the real persons entitled to claim the amount, and no concert between the former and the latter was brought on the record. While observing that it is well known that the main income of many lawyers in the District Court is derived from the work of identifying persons and sureties in the Court, their Lordships held that no case of conspiracy under section 120B, Indian Penal Code, was made out against the petitioner merely on the basis of the fact that he had identified certain persons as the real claimants before the Court. In Attar Singh v. State of Punjab, 1986(2) R.C.R. 211, it was explained that identification of a person before a Court or an Authority is per se no incriminating evidence for the offence of conspiracy unless there could be evidence of some antecedent behaviour showing some concern or connection between the lawyer and the principal accused. In an identical situation, the prosecution against the Advocate was quashed. A similar view was expressed by this Court earlier in Mansa Ram v. State of U.T. Chandigarh, 1984(2) RCR (Crl.) 129 : 1984 CC Cases 231 (HC). No precedent to the contrary could be cited by the learned counsel for the respondent.

To repeat, in the present case the only evidence collected against the petitioner is that he had identified a person to be Lattoo Ram, the executant of a general power of attorney on 11.1.1991 before the Notary Public. No evidence of any antecedent behaviour showing some concern or connection between the petitioner and Lattoo Ram, or between the petitioner and Piare Lal could be found. Admittedly, the petitioner was not a party to the transaction between the complainant and Piare Lal, nor he was a party to the general power of attorney or agreement to sell executed by Piare Lal in favour of Smt. Santosh Kumari. All that is being alleged is that inferentially when the original power of attorney has been found to be forged, the aid rendered by the petitioner by being an attesting witness and having identified the executant to be Lattoo Ram must be sufficient to conclude a conspiracy between him and Piare Lal which led to cheat and defraud the complainant. Such a contention was not accepted either by the Apex Court or this Court in the decisions cited above. Resultantly, the proceedings against the petitioner are nothing but an abuse of the process of the Court requiring interference under section 482 of the Code.

As a result of the above discussion, the petition is allowed. The impugned order dated 22.3.1995 (Annexure P5) passed by the Judicial Magistrate, Chandigarh, charging the petitioner for the offence under sections 420/467/468/471/120B, Indian Penal code, is hereby quashed. However, the proceedings against other coaccused will continue in accordance with law.