NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  237 OF 2020 (Arising out of S.L.P.(Crl.)No.4592 of 2017)

PREM CHAND SINGH ..........APPELLANT(s)

Versus

THE STATE OF UTTAR PRADESH AND ANOTHER         ......RESPONDENT(s)

JUDGMENT  

NAVIN SINHA, J.

Leave granted.   

2. The appellant has challenged the order dated 18.12.2015

rejecting his application for discharge and the affirmation of

the same on 31.05.2016 in Criminal Revision No. 70 of 2016

by the 4th Additional Sessions Judge, Gonda (U.P.).

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3. The respondent  no.2  is  stated  to have given a general

power of attorney to the appellant on 02.05.1985 and on the

basis of which the appellant sold certain lands belonging to

the respondent.   The respondent lodged FIR No. 160 of 1989

on 14.09.1989 that he had never executed any general power

of attorney in favour of the appellant and that the appellant

has forged general power of attorney to sell his lands illegally.

The appellant was acquitted in the trial as the charge could

not be established.   Though no records are available, the

acquittal is not disputed by counsel for respondent.   The

respondent then filed Civil Suit No. 353 of 2007 to cancel the

general  power  of  attorney.  On 09.10.2008, the respondent

filed an application under Section 156(3)  Cr.P.C. before the

court which was forwarded to the police leading to registration

of FIR No. 114 of 2008 on 09.10.2008 alleging that the

appellant  had  forged  general  power  of attorney  and  on the

basis of the same had sold certain lands of the respondent.

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That earlier also the appellant had sold lands of the

respondent in like manner.  

4. The appellant filed an application for discharge referring

to his acquittal dated 07.08.1998 under Section 419 or 420

Cr.P.C. pleading that he could not be tried for the same

offence twice and that the FIR was based on concealment of

facts with regard to the earlier acquittal.   The Judicial

Magistrate Class II Gonda rejected the discharge application

simplicitor  on the  ground that the  order  of  acquittal  dated

07.08.1998 had not been brought on record.  Revision against

the same was dismissed holding that the grounds urged on

behalf of the appellant can more appropriately be urged at the

time of framing of the charges.

5. Mr. Pradeep Kant, learned senior counsel appearing for

the appellant, submitted that the order of acquittal dated

07.08.1998 and the subsequent institution of Civil Suit

No.353 of  2007 for the cancellation of  the general  power of

attorney executed by the respondent is not in dispute.   The

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subsequent FIR on 09.10.2008 itself refers to the general

power of attorney which was the subject matter of FIR No. 160

of 1989 but conceals the order of acquittal of the appellant.  It

is submitted that in the facts of the case, the institution of the

FIR on 09.10.2008 long years after execution of general power

of attorney dated 02.05.1985 is, therefore, a complete abuse of

the process of law and the proceedings are fit to be quashed.

Referring to Section 300 Cr.P.C. it is submitted that the

appellant could not have been tried for the same offence twice

at the behest of the respondent who is the complainant

himself in both the FIRs.

6.   Mr. Amit Yadav, learned Counsel for the respondent­

complainant, submits that the High Court has declined

interference since the ingredients of the two FIRs were

different.   While the FIR No. 160 of 1989 was under Section

419 or 420 IPC the second FIR was under Sections 467, 468

and 471 also.   Furthermore, the second FIR contains

allegations that the appellant put up an imposter in place of

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the respondent before the registration authorities and

collusively  executed sale  deed  in respect  of  his lands along

with Sushil Kumar Singh and Arvind in pursuance of a

general power of attorney which respondent had never

executed.  The  discharge  application  was, therefore, rightly

rejected and interference declined in revision.

7. We have heard learned counsel for the parties.

8. The FIR No. 160 of 1989 alleges that the respondent on

account of his  job invariably stayed outside.   The appellant

had created a forged general power of attorney from the

respondent in his name with regard to his lands bearing Gata

no.  77/0.87 decimal  and sold  it  on the basis  of the forged

general power of attorney which the respondent became aware

of on 25.07.1989.   The respondent denied having ever

executed any general power of attorney in favour of the

appellant. The respondent does not dispute that the appellant

was acquitted of  the charge by judgment dated 07.08.1998.

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The fact that the judgement may not have been made available

is therefore inconsequential.

9. The institution of Civil Suit No. 353 of 2007 by the

respondent for cancellation of the general power of attorney,

after the acquittal of the appellant, is nothing but an

acknowledgment of the genuineness of the general power of

attorney executed by the respondents which he now wished to

revoke.

10. The respondent then filed an application under Section

156(3) Cr.P.C. which was forwarded by the Magistrate to the

police  leading to registration of FIR dated 09.10.2008.   The

allegations are similar that the appellant put up an imposter

in place of the respondent and along with one Sushil Kumar

Singh and Arvind on the basis of a general power of attorney,

which the respondent had never executed, sold his lands.  The

FIR itself recites that earlier also the appellant had sold the

lands of the respondent on the basis of same general power of

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attorney, but conceals the order of acquittal dated 07.08.1998,

and also the institution of Civil Suit No. 353 of 2007 for

annulment of the same.

11. It is, therefore, apparent that the subject matter of both

the FIRs is the same general power of attorney dated

02.05.1985 and the sales made by the appellant in pursuance

of the same.   If the substratum of the two FIRs are common,

the mere addition of Sections 467, 468 and 471 in the

subsequent FIR cannot be considered as different ingredients

to justify the latter FIR as being based on different materials,

allegations and grounds.

12. Section 300 of the Cr.P.C. provides as follows:

“300. Person once convicted or acquitted not to be tried for same offence.  (1) A person who has once been tried by a Court of

competent jurisdiction for an offence and convicted or acquitted of such  offence shall, while such conviction or acquittal remains in force,  not  be liable to  be tried  again for the same offence,  nor  on the  same  facts for  any other offence for which a different charge from

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the one  made against  him  might  have  been made under sub­Section (1) of Section 221, or for which he might have been convicted under sub­Section (2) thereof.”

13. In view of the conclusion that the  substratum of the two

FIRs are the same and that the appellant has already stood

acquitted on 07.08.1998 of the charge with regard to forging

any general power of attorney of the respondent, we are of the

considered opinion that the subsequent prosecution of the

appellant in FIR No. 114 of 2008 dated 09.10.2008 is

completely unsustainable.   In the result, the FIR dated

09.10.2008, the orders dated 18.12.2015, 31.05.2016 and the

impugned order dated 01.03.2017 are set aside.  The appeal is

allowed.

……….………………………..J.    (Navin Sinha)                          

………………………………….J.  (Krishna Murari)                   

New Delhi, February 07, 2020

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