Sr. Nos. 15 v. UT of J&K & Anr.

ORDER 16.01.2023 All these matters are arising out of the same FIR, so all are being taken up together for their final disposal. CRM(M) No. 22/2023

1. Through this petition, the petitioner is seeking quashment of FIR no. 0121/2022 registered on 16.11.2022 with the Police Station, Amb Gharota for alleged commission of offence under section 420 Indian Penal Code, 1860 (IPC). The FIR has been registered at the instance of the respondent no. 2-Rajesh Kumar as being the complainant.

2. In the FIR, the respondent no. 2 has named two persons as accused one being the petitioner and other being Shivinder Singh. The factual contents of the FIR are that the respondent no. 2 became the victim of 2 CRM(M) No. 22/2023 CrlM No. 30/2023 a/w Bail App No. 5/2023 Bail App No. 1/2023 cheating at the hands of the petitioner and the other co-accused by reference to a land deal of 21 kanals 13 marlas of land in khasra no. 3481, khata no. 19 situated at Bhalwal, Jammu, for a sale consideration of Rs. 1,94,65,000/- for which even a written agreement of sell dated 28.02.2019 came to be executed whereunder a payment of an advance amount of Rs. 50,00,000/- came to take place by the respondent no. 1 in favour of the petitioner and co-accused Shivinder Singh.

3. The respondent no. 2 came to know about the reality of the situation that none of the accused persons were having any title qua the land in reference and without bearing any claim of ownership as well as possession qua the said land the two accused persons had represented to the respondent no. 2 that co-accused Shivinder Singh and the petitioner were the owners in possession of the land competent to sell the same, but the fact was contrary to the same. It is on this account that the respondent no. 2 registered FIR with the Police Station, Amb Gharota against the petitioner and Shivinder Singh.

4. The time at which the petitioner has ventured to come forward for seeking the quashment of the FIR is reflective of the fact that the petitioner wants to abort any indulgence of the police to probe into acts of alleged fraud at the end of the petitioner and co-accused Shivinder Singh.

5. A perusal of the petition filed by the petitioner before this Court reveals that no where there is a single line averment to the fact that the 3 CRM(M) No. 22/2023 CrlM No. 30/2023 a/w Bail App No. 5/2023 Bail App No. 1/2023 petitioner as well as co-accused Shivinder Singh is/are the actual owner in possession of the land above mentioned.

6. In fact, it is by reference to abrogation of Article 370 of the Constitution of India that the petitioner is trying to carve out an excuse for the non execution of the sale deed pursuant to agreement to sell in favour of the respondent no. 2.

7. This Court is at loss to understand as to how without the petitioner and the co-accused ever being the owners in possession of the said land can be heard to say that their act of making agreement to sell with the respondent no. 2 under which alleged payment of Rs. 50,00,000/- as an advance payment came to be made was an act of bonafide transaction of a civil nature. In the petition, a situation is being sought to be exploited that the respondent no. 2 has filed a civil suit against the petitioner and the co- accused with respect to specific performance of said agreement to sell which suit is reported to be pending adjudication before 1st Additional District Judge, Jammu having been filed on 17.12.2021. Copy of the plaint so filed by the respondent no. 2 is annexed with the petition a perusal whereof reflects that in the said suit the respondent no. 2 is seeking recovery of his alleged advance amount paid alongwith penal amount as stipulated in the said agreement to sell dated 28.02.2019. This civil suit cannot have any bearing on the purported criminality of the petitioner and the co-accused which is borne out of the fact that without being the owners 4 CRM(M) No. 22/2023 CrlM No. 30/2023 a/w Bail App No. 5/2023 Bail App No. 1/2023 of the land in reference, still the petitioner and co-accused Shivinder Singh represented themselves to be the owners and, thus, ventured to transact a deal by even accepting part payment from the respondent no. 2 which they could not have carried and cannot carry to its logical end of execution of the sale deed by and in their own name in favour of the respondent no. 2. The respondent no. 2 was well within his right to take recourse to law for seeking recovery of his money and for that the course of action at his disposal was to go for civil suit for recovery whereas the registration of FIR by the respondent no. 2 is to go after the criminality of the petitioner and the co-accused.

8. In view of the aforesaid situation of facts as obtaining from the very perusal of the petition and the documents accompanied therewith, this Court is not inclined to grant any indulgence at this stage to check the police investigation under the said FIR and, as such, finds this petition to be merit less and, accordingly, dismissed. Bail App No. 5/2023

1. This bail application under section 438 Cr.P.C, 1973 has been filed by the petitioner after suffering rejection of his bail application from the court of learned Sessions Judge, Jammu in terms of order dated 30.12.2022.

2. In light of the aforesaid facts and circumstances as dealt with in CRM(M) no. 22/2023, the anticipatory bail application filed by the petitioner is also held to be misconceived and is, accordingly, dismissed. 5 CRM(M) No. 22/2023 CrlM No. 30/2023 a/w Bail App No. 5/2023 Bail App No. 1/2023 Bail App No. 01/2023

1. This bail application under section 438 CrPC 1973 has been filed by the petitioner after suffering rejection of his bail application from the court of learned Sessions Judge, Jammu in terms of order dated 30.12.2022.

2. In light of the facts and circumstances of the case, the bail application filed by the petitioner is also dismissed on the parity of reasoning as given above in the case no. CRM(M) no. 22/2023 titled “Haji Mohd. Afzal Vs. UT of J&K and another.” (RAHUL BHARTI) JUDGE JAMMU 16.01.2023 Shivalee Whether the order is reportable? Yes/No. Whether the order is speaking? Yes/No.