Quashed

Harnek Singh and Ors. v. State and Anr.

Rajasthan HC10 Feb 2012CRLMP/1312/2009

Case brief

AI extract

What is this about?

The Court quashed the impugned order of the Judicial Magistrate and Sessions Judge taking cognizance against the petitioners for offences under Sections 379 and 411 IPC. The court held that documentary evidence of a sale deed executed by the complainant's mother rendered the theft allegations baseless and inconsistent.

What did the court decide?

The order dated 18.04.2009 passed by the learned Judicial Magistrate taking cognizance and the order dated 23.07.2009 by the learned Sessions Judge affirming the same are quashed and set aside.

Harnek Singh and Ors. Vs State and Anr. — Cheating and Forgery | Rajasthan HC (2012)

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S.B. CRIMINAL MISC. PETITION NO. 1312/2009 (Harnek Singh & Ors. Vs. State of Rajasthan & Anr.)

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DATE OF ORDER : 10 February, 2012

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HON’BLE MR. JUSTICE SANDEEP MEHTA

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Mr. G.J. Gupta, for the petitioners. Mr. Panney Singh, Public Prosecutor. Mr. Rakesh Matoria, for the respondent No.2.

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The present misc. petition has been filed by the petitioners seeking quashing of the order dated 18.04.2009 passed by the learned Judicial Magistrate, Sri Ganganagar in Case No.39/2009, taking cognizance against the petitioners for the offences under Sections 379 and 411 IPC as affirmed in revision by the learned Sessions Judge, Sri Ganganagar in Criminal Revision No.108/2009 by his order dated 23.07.2009.

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Briefly stated the facts necessary for the disposal of the misc. petition are that the respondent No.2, who is an advocate and the brother of the petitioners Nos.1 and 2 filed a complaint in the court, which was forwarded to the police for investigation under Section 156(3) Cr.P.C. It was alleged by the complainant in his complaint that he had purchased the trolley of a tractor from one Balvinder Singh in the year 1997 for a sum of Rs.23,000/-. It is further stated that the trolley along with his father's tractor was lying in the joint house of the complainant located at Village 12-Q. It has further been alleged that since the complainant himself was not cultivating the agricultural field, as such, the same has been given on contract, therefore, the complainant's trolley and the tractor of the complainant's father were being looked after by one Kartar Singh. It has further been alleged that on 26.02.2008, the petitioners Nos.1 and 2, who are the brothers of the complainant came to the Village 12-Q along

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with co-accused, the petitioners Nos.3 and 4 namely Dharampal and Sajjan Kumar and stole the trolley of the complainant. It is alleged that at the time of the incident, Satvir Singh and Kartar Singh requested the accused that the trolley belongs to Paramjeet Singh and they should not take it away but still the accused took away the trolley.

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The complaint was registered as FIR and during the course of the investigation, the police investigated the matter thoroughly and came to the conclusion that the allegation of the complainant regarding the theft was patently false. It was found that the trolley belongs to the mother of the complainant and the petitioners Nos.1 and 2 and that the same came to the mother's share when the family partition was done. It was also found that previously the trolley and the tractor were owned by the father of the complainant, who had taken a bank loan after keeping the tractor as well as the trolley mortgaged with the Bank. After the family settlement, the trolley came into the possession and ownership of the mother, who sold the tractor to the petitioners Nos.3 and 4 by way of a sale deed for a sum of Rs.30,000/- on 25.02.2008. The statement of the mother of the complainant namely Smt. Kartar Kaur has also been recorded by the police, who stated that she had sold her trolley to the petitioners Nos.3 and 4. Thus, the police came to a finding that the case of the complainant regarding the petitioners Nos.1 and 2 having committed the theft of the tractor and trolley and petitioners Nos.3 and 4 having purchased the same knowing the same to be a stolen property was patently false and accordingly a FR was submitted in the court. On the FR being so submitted, notices were issued to the complainant, who appeared and submitted a

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protest petition and thereafter got examined the witnesses in support of the protest petition. Thereupon, the learned Magistrate by order dated 18.04.2009 proceeded to take cognizance against the petitioners for the offences under Sections 379 and 411 IPC. The petitioners preferred a revision petition challenging the order taking cognizance which was rejected by the order dated 23.07.2009. It is against the aforesaid orders, the present misc. petition has been filed by the petitioners praying for quashing of the order of taking cognizance and all subsequent proceedings taken against them.

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Assailing the order impugned, learned counsel submits that the police during the course of investigation has procured documentary evidence to the effect that the trolley in question was that of the mother of the petitioners Nos.1 and 2 who sold the same to the petitioners Nos.3 and 4. The document of sale is very much available on the record of the case. Learned counsel submits that the oral evidence of the complainant cannot be preferred as against the documentary evidence available on the record. It is submitted that when there is a document of sale available on the record of the case, there is no question of the theft being committed with regard to the trolley. It is submitted that if the document of sale was an incorrect document, then, the mother of the complainant and the petitioners Nos.1 and 2 was also liable to be prosecuted for having conspired to sell the complainant's trolley. Thus, it is submitted that the story of the complainant regarding the theft of the trolley and the purchase of the stolen property cannot be accepted ex facie.

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Learned Public Prosecutor and learned counsel for the complainant have opposed the misc. petition and submit that at

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the stage of taking cognizance, the learned Magistrate only has to see the material collected in support of the complaint and the reasons given by the police in the FR need not be considered by the court. It is submitted that the complainant had given ample evidence on the record of the case to the effect that the trolley in question was owned by him and that the witnesses of the complainant also gave evidence to the effect that the petitioners had stolen the vehicle despite the protest being made by the witnesses of the complainant. Thus, as per them, no interference was called for by this Court in the order of taking cognizance, which has already been affirmed in the revision as well. Thus, it is submitted that this Court should refrain from interfering in the well reasoned order of taking cognizance.

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Learned counsel however not in a position to dispute the fact that the mother of the complainant has executed the document substantiating the claim of the accused petitioners regarding the trolley having been sold by her to the accused but states that the mother of the complainant is a lady in excess of 80 years of age and that since she was residing with the accused, she has been made to sign the documents under pressure.

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I have heard learned counsel for the parties, perused the orders impugned passed by the learned courts below, record of the case and have considered the arguments advanced at the bar.

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A perusal of the orders impugned and the record of the case particularly the FR submitted by the police reveal that there is documentary evidence available on the record to the effect that the document of sale of trolley was executed by the mother

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of the complainant. If at all, the complainant's case regarding the theft having been committed of the complainant's trolley was considered to be true, then, Smt. Kartar Kaur, the mother should also have been prosecuted for either having committed breach of trust or for having conspired with the accused for having created a false document. In any event, this Court feels that there appears to be no reason for disbelieving the document of sale executed by the lady Smt. Kartar Kaur more so because there is also evidence collected by the police to the effect that the father of the complainant also used the said trolley for the purpose of getting a loan by mortgaging the trolley with the bank. If that be the case, obviously, the trolley could only have been mortgaged by the owner thereof. When the complainant's father was the owner of the trolley, then, the complainant's case that he purchased the trolley in the year 1997 per se is liable to be rejected. The complainant's case regarding him having purchased the trolley and thereafter the petitioners Nos.1 and 2 having stolen and given the same to the petitioners Nos.3 and 4 thus does not stand to scrutiny.

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Resultantly, this misc. petition succeeds. The order dated 18.04.2009 passed by the learned Judicial Magistrate, Sri Ganganagar in Case No.39/2009, taking cognizance against the petitioners for the offences under Sections 379 and 411 IPC as affirmed in revision by the learned Sessions Judge, Sri Ganganagar in Criminal Revision No.108/2009 by his order dated 23.07.2009 are hereby quashed and set aside.

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(SANDEEP MEHTA), J.

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ms rathore

Harnek Singh and Ors. v. State and Anr.

Case brief

What is this about?

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Harnek Singh and Ors. v. State and Anr.

Case brief

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