Rachpal Kaur v. State of Punjab & Anr.

Mr.R.K.Gupta, Advocate for respondent No.2. M ehinder S ingh S ullar , J . (Oral) The matrix of the facts, culminating in the commencement and relevant for a limited purpose of deciding the core controversy involved in the present petition and emanating from the record, is that petitioner Rachpal Kaur was stated to have agreed to enter into an agreement to sell dated 24.5.2005 with complainant Ajit Singh, in respect of the land in dispute, measuring 8 kanals 0 marla, for a total consideration of Rs.6,35,000/-. Out of the total consideration, an amount of Rs.1,50,000/- was stated to have been paid as earnest money, plus Rs.20,000/- was adjusted already taken by her. The sale deed was to be executed on or before 25.11.2005. According to the complainant, the petitioner did not execute the sale deed on that day. She was stated to have already entered into an agreement to sell her land in dispute in favour of some other person. In this manner, the petitioner was stated to have cheated the complainant.

On the basis of aforesaid allegations and in the wake of complaint of Ajit Singh complainant, the present case was registered against the petitioner- accused, vide FIR No.18 dated 26.1.2008 (Annexure P3) on accusation of having CRM No.M-20984 of 2008 2 committed the offences punishable under sections 406 and 420 IPC by the police of Police Station Fatehgarh Sahib.

The petitioner-accused did not feel satisfied with the initiation of criminal proceedings against her and filed the present petition for quashing of FIR (Annexure P3), by invoking the provisions of section 482 Cr.PC. That is how, I am seized of the matter.

The case set up by the petitioner, in brief, in so far as relevant, was that she never executed any agreement to sell her land. Although, she borrowed a sum of Rs.1,50,000/- from the complainant, in order to help her son-in-law to enable him to purchase a plot and signed a writing, being rustic lady, in token of the loan. She does not know reading or writing except putting her signatures in Punjabi. As soon as, she came to know that the complainant and his procured witnesses had committed fraud with her by projecting the writing as agreement to sell, then she moved an application to the higher authorities, including the Sub Registrar, for taking legal action against them. The complainant filed a civil suit against the petitioner, vide plaint (Annexure P1), wherein, she filed her written statement (Annexure P2), with regard to the same subject matter. The complainant was stated to have lodged false criminal case against her. That being so, the petitioner claimed the quashing of the FIR (Annexure P3) and all subsequent proceedings thereto in this context.

The respondents contested the claim of the petitioner and filed the written statements, inter-alia, pleading certain preliminary objections of, maintainability of the petition and cause of action of the petitioner to file the petition under section 482 Cr.PC. Instead of reproducing the entire contents of the written statements, suffice it to mention that the respondents have almost reiterated the contents of the FIR (Annexure P3) in their respective replies and prayed for dismissal of the petition.

Having heard the learned counsel for the parties, having gone CRM No.M-20984 of 2008 3 through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.

As is evident from the record that the petitioner was stated to have entered into an agreement to sell dated 24.5.2005 with the complainant, pertaining to the land in dispute for a total consideration of Rs.6,35,000/- and earnest money of Rs.1,50,000/- plus Rs.20,000/- was claimed to have been paid by the complainant to the petitioner. No doubt, the petitioner has admitted the factum of taking Rs.1,50,000/- as loan (not earnest money), but she has stoutly denied the execution of the agreement to sell her land.

What is not disputed here is that complainant Ajit Singh has already filed a civil suit for a decree of specific performance of the same agreement to sell dated 24.5.2005 against the petitioner, vide plaint (Annexure P1) in the Court of Civil Judge (Senior Division), Fatehgarh Sahib. The petitioner contested the suit and filed her written statement (Annexure P2), completely denying the existence of the impugned agreement to sell.

Meaning thereby, the dispute is purely of a civil nature and subject matter of civil suit (Annexure P1) and FIR (Annexure P3) is identical. Not only that, equelly, the complainant, in order to prove the criminal offence of cheating, is required to prove that the accused had fraudulent and dishonest intention at the time of making promise or representation even in case where the allegations are made in regard to the failure on the part of the accused to keep his promise. In the absence of culpable intention at the time of making initial promise being absent, no offence under section 420 IPC can be said to have been made out. Whether the petitioner executed the agreement to sell her land as claimed by the complainant or writing is executed as a security in lieu of loan as stated by the petitioner, would be the moot points to be decided by the civil Court in the suit filed by the complainant. Therefore, the matter, which essentially involves dispute of civil CRM No.M-20984 of 2008 4 nature, cannot legally be allowed to become subject matter of criminal proceedings, which may be resorted to as a short cut method to execute a non- existent decree.

The jurisdiction of civil and criminal Courts is entirely different and distinct from each other. The matters, which squarely fall within the ambit and jurisdiction of civil court, cannot legally be permitted to be re-agitated in parallel proceedings in the criminal Court. It is not a matter of dispute that as the subject matter of the instant FIR, clearly falls within the purview of civil dispute, as contemplated under section 9 CPC, which has already been filed by the complainant in the civil Court, by way of plaint (Annexure P1), therefore, he cannot possibly be again permitted to re-agitate the same in the garb of criminal prosecution, otherwise there will be no end of unwarranted litigation in this relevant connection.

In this manner, to my mind, the initiation and continuation of criminal prosecution by the complainant against the petitioner is nothing, but a sheer and complete misuse of process of criminal law and deserves to be quashed in the obtaining circumstances of the case.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

In the light of the aforesaid reasons, the instant petition is accepted and the FIR (Annexure P3) and all subsequent criminal proceedings thereto are hereby quashed. Consequently, the petitioner-accused is discharged from the criminal prosecution in this relevant direction.

13.10.2010 (Mehinder Singh Sullar) AS Judge