ASHOK BHUSHAN,J. - (1.) Leave granted.
(2.) This appeal has been filed questioning the judgment of Allahabad High Court dated 17.01.2017 dismissing the application filed by the appellant under Section 482 Cr.P.C. wherein the orders passed by the Session Judge dated 02.11.2015 rejecting the two applications filed by the appellant under Section 391 Cr.P.C. were challenged.
(3.) Brief facts of the case, which are necessary to be noted for deciding this appeal are:- 3.1 A Regimental Welfare Trust relating to the Scinde Horse Regiment of Indian Army was registered on 27.06.1959. The Trust owned various immovable properties including agricultural land in Village Bichaie, Phoolpur and Beehat in Tehsil-Bilaspur, District-Rampur. The respondent No.2 was in possession of 50 acres of agricultural land of the trust since 1975 in Village-Bichaie as thekedar. Other agricultural land of the trust in three villages of Tehsil-Bilaspur were given to different persons as thekedar. 3.2 The office of Chairman of the Trust is held by the Commandant of Scinde Horse Regiment. On 18.10.1989, a deed of declaration of trust was executed by the Commandant of the Scinde Horse Regiment claiming it to be a new Trust Deed without changing the nature of the trust. In the deed dated 18.10.1989 (registered at Delhi), details of trust land in District- Rampur were also mentioned, which included 474 Bigha land in Village- Bichaie. One of the clauses mentioned in the Trust Deed was that there may be conversion of the trust corpus by unanimous approval of all the trustees. On 18.10.1989, a Resolution No.112 was passed by the trustees where it was unanimously decided to authorise Col. Ravi Inder Singh, Brig. Sukhjeet Singh, MVC, Maj. Gen. B.S. Malik and Ris Maj. Roshanlal to act in the name of the Trust and on behalf of the trustees to sell the trust farm land alongwith buildings thereon situated in villages Bichaie, Phoolpur and Beehat. Resolution also contained other conditions for executing conveyance and for registration of land. 3.3 In pursuance of the Trust Deed and the Resolution dated 18.10.1989, a Memorandum of Understanding (MOU) was entered with Scinde Horse Trust and respondent No.2-Shri Hargursharan Singh (complainant) and other purchasers for purchase of the land. The MOU also contained a condition that payment was required to be made by pay order or by bank draft only in the favour of Scinde Horse Trust. On 28.04.1991, another MOU was executed between Shri Hargursharan Singh (complainant) and other purchasers by which complainant was to acquire 40 acres of land at the rate of Rs.44,000/45,000/- per acre of land. On 03.07.1991, the complainant paid an amount of Rs.100,400/- to Col. Ravi Inder Singh as an earnest money. 3.4 The land being not sold to the complainant, he lodged a First Information Report on 21.12.1991. The case of complainant in the First Information Report was that although complainant agreed to purchase the land of trust at the rate of Rs.44,000/45,000/- and he paid a sum of Rs.100,400/- on 03.07.1991 to Col. Ravi Inder Singh as an earnest money, who assured him that sale shall be executed till 08.07.1991, however, till date, sale has not been executed and accused persons are not ready and willing to execute the sale deed. Complainant further came to know that no permission for the sale of the trust land has been given to the accused persons by the Court. On those allegations, FIR was lodged under Section 420/406 IPC. 3.5 Almost similar allegations were made by one Shri Fateh Singh against the same accused wherein Shri Fateh Singh claimed that he has paid an amount of Rs.75,600/- as an earnest money to Col. Ravi Inder Singh on 03.07.1991 and sale having not been executed, the FIR be registered. 3.6 On FIR filed by the complainant, case Crime No. 315/1991 was registered under Section 420/406 IPC and on FIR submitted by Shri Fateh Singh, case Crime No. 315-A of 1991 was registered under Section 420/406 IPC. On investigation, in both the crime numbers, charge sheet was submitted under Section 419, 420, 467, 471 and 120-B IPC. 3.7 The appellant, who was one of the accused alongwith other accused filed a Criminal Misc. Application No. 6027 of 1993 and 6028 of 1993 praying for quashing the FIRs in case Crime No. 315 of 1991 and 315-A of 1991 and the orders summoning the accused persons by Chief Judicial Magistrate, Rampur. 3.8 The High Court while noticing the facts of the case noted from both the complaints that receipt of the amount of Rs.1,75,000/- from Shri Hargursharan Singh and Shri Fateh Singh is admitted. High Court further noticed that stamp papers worth Rs.1,75,000/- have been purchased. High Court also noticed that it is admitted fact that permission to sell trust land was applied in the Court of District Judge, but the same was refused on the ground that proper order in that respect can be passed in proceedings under Section 92 of Code of Civil Procedure which was not done. The High Court also noticed that petitioners obtained information from two eminent jurists, including Mr. Soli Sorabji, who opined that the trustees have power to sell the trust land in the instant case. The High Court after noticing the facts had made following observations while deciding the applications:- " ... ... ... ... .....after going through the averments with annexure it appears that there was no dishonest misappropriation of the property by the petitioners as entire sum has been spent for the purposes of purchasing stamp papers. An agreement has been advanced, that stamp paper could not be encashed after a lapse of six months can in no way be attributed dishonest intention to cause harm or injury to respondent no.2 and that is also not the basic allegation against the petitioners. Since there is no misappropriation of Rs.1,76,000/- by any of the petitioners, the charge u.S.406 IPC cannot stand, there is also no allegation with regard to forgery of any document ... ... ... ... ...... " 3.9 High Court came to the conclusion that charge of Conspiracy under Section 120-B against petitioners (applicants) fails. High Court was of the view that further scrutiny of the factual material would be required to be done at a stage of taking evidence, at that time, contentions of both the parties regarding elements of cheating can be examined with reference to the evidence. High Court refrained to express any opinion with regard to above. High Court, as a result of the above consideration, allowed the applications in part, set aside the order passed by the Chief Judicial Magistrate. High Court further directed that Chief Judicial Magistrate shall take cognizance under Section 420/34 IPC afresh against petitioner Nos. 1 and 2 and issue process accordingly. Prayer for quashing of the First Information Report and the Charge Sheet was refused. Petitioner Nos. 3 and 4 were also discharged. 3.10 After the above order of the High Court dated 09.11.1995, charges were framed on 18.11.1996 under Section 420/34 IPC. On 17.11.2000, prosecution evidence started. Prosecution completed its evidence on 21.11.2012. Thereafter, evidence of defence was also recorded and trial court delivered its judgment on 07.10.2013 convicting the appellant under Section 420 read with Section 34 IPC and awarded sentence of five years simple imprisonment and fine of Rs.25,000/-. The other co-accused Col. Ravi Inder Singh having died during the trial, the appellant was taken into custody and sent to the prison. 3.11 On 08.10.2013, a Criminal Appeal No.57 of 2013 was filed by appellant in the Court of the Sessions Judge, Rampur. On 26.06.2014, application under Section 391 Cr.P.C.(14 Kha) was filed for placing on record the said Trust Deed dated 18.10.1989 and Resolution No. 112. In the application, it was stated that Trust Deed was registered with the Registrar of Delhi and the photocopy of the Trust Deed is available on record of the Lower Court being paper No. 30Kha/46, which has also been mentioned in the impugned judgment. Certified copy was filed alongwith the application with a prayer that the document be kindly taken on record and certified copy of the Resolution passed by the trustees was filed, which was prayed to be taken on record. 3.12 Another application under Section 391 Cr.P.C. (17 Kha) was filed on 15.07.2014 praying for summoning the witnesses to prove the Trust Deed dated 18.10.1989 and Resolution No.112. Both the applications came for consideration before the District Judge, who by its order dated 02.11.2015 rejected both the applications. The Appellate Court opined that lower court 's record shows that case is very old and it remained pending in the trial for several years. Sufficient opportunity was given to the accused-appellant to produce evidence in defence. No sufficient ground has been shown why these documents were not got proved in the trial court. Hence, the applications deserve to be rejected. 3.13 Against the order dated 02.11.2015, an application under Section 482 Cr.P.C. was filed in the High Court by the applicant, which has been rejected by the High Court vide its impugned judgment dated 17.01.2017. High Court was of the view that the applications filed by the applicant for filing additional evidence at such a belated stage appears to be with some ulterior malafide motive or for delaying the decision of the appeal to eternity. High Court rejected the application filed under Section 482 Cr.P.C. Feeling aggrieved, the appellant has come up in this appeal. ;