CHANDIGARH. Crl. Misc. No. M-27995 of 2008 Date of Decision: December 24 & Ors. v. State of Punjab & Ors.

27.12.2005 by the Director of the company Mr.Brij Mohan the concerned officers of the OIC ltd. including General Manager of Punjab State advised to bid more than Rs.2 crores as the land is situated in the brink of National Highway and very much suitable for development of commercial complexes/ residential houses etc. 2. The Managing Director, Indian Oil Corporation Ltd., G-9, Ali Yavar Jungmarg Bandra East Mumbai-400051C who approved the knowing fully well the defect and misrepresented the board of Directors IOC as well. 3. Shri Rajat Juneja, Sales Officers, Indian Oil Crl. Misc. No.M-27995 of 2008 [9] Corporation Ltd., R.S. Patiala Sales Area, Khewatdar Village Pahar Khurd, Tehsil Rajpura (who executed the sale knowing fully well the defect in the land). 4. The Director Pipe Lines, Indian Oil Corporation Ltd., Corporate Office, 3079/3, JB Tite Marg, Sadiq Nagar, New Delhi-110049 (who had also approved the land for sale knowing fully well defect in the land metal scrap trade Corporation Ltd through its Regional Manager, Deewan Vikas Building Ist floor, 30/31-A, Asaf Ali Road, New Delhi-110002 (They approved and initiated the sale and thus entered into the criminal conspiracy for fraud and (6). The Chairman, Indian Oil Corporation Ltd., Corporate Office, 3079/3, JB Tito Marg, Sadiq Nagar, New Delhi-110049 (who had also approved the land for sale). Now on considering our pathetic situation how we have been cheated and be fooled and not adhering to the advice suggestion given by the Tehsil Office of M/s IOCL, I Brij Mohan Mahajan (Director of M/s Nimitaya Properties Ltd., New Delhi) with utmost sincerity and profound respect would like to request you to kindly initiate necessary action and direct the concerned officer to lodge an FIR against all who are involved in the above fraudulent deal of cheating under various section of IPC. Looking for word to your kind Crl. Misc. No.M-27995 of 2008 [10] cooperation in this regard I remain with folded hands at your mercy.” It is not out of place to mention here that at the initial stage when the petition came up for preliminary hearing, a Coordinate Bench of this Court had stayed the further proceedings vide order dated October 24,

2008. The Bench hearing the petition was informed by the complainant that steps for compromise were being taken, as is apparent from the interim orders. On February 18, 2010, when the matter came up for motion hearing and an adjournment was prayed for by counsel for the petitioners, the case was adjourned to March 5, 2010, however, the interim order dated October 24, 2008 was modified to the extent that the prosecution agency will be entitled to continue with the investigation, however, observing that in case the prosecution agency opts to present challan sheet under Section 173 (2) Cr.P.C., the Court concerned will not frame charges against the petitioners. It was also directed that the guidelines of Apex Court in Joginder Kumar Vs. State of U.P., (1994) 4 SCC 260 regarding arrest of the petitioners would be kept in view before taking any decision to arrest any of the petitioners,giving liberty to the petitioners to avail the legal remedy available to them in accordance with law. On April 8, 2010, with the consent of the petitioners and the complainant, matter was taken up for reconciliation. The land which was sold by IOCI to the complainant for `

2.11 crores was offered to be re-purchased for a sum of ` 4.03 crores as per the estimate of the valuer but the said amount was not acceptable to the complainant. Offer to the extent of ` 5 crores was also made by IOCL to Crl. Misc. No.M-27995 of 2008 [11] the complainant for re-purchase of the land. As per the interim order dated May 18, 2010, it is apparent that the complainant disputed the valuation of the property as `4.03 crores but contended that the value of the property was ` 45 crores. In view of the difference of the valuation in the estimation of both the parties, the proceedings for re-conciliation were dropped and the matter was taken up on merits. On July 27, 2010, State Government informed that the investigating agency would complete the investigation within a period of one month. On October 15, 2010, it was informed that the charge-sheet was being filed against only four persons. Copy of the report under Section 173 (2) Cr.P.C. was also made available to the Court for appreciation of the matter on merits. Few undisputed facts relevant for the adjudication of the present petition and mentioned in the petition for quashing are relevant for the adjudication of this petition:- “The IOCL is stated to have four major divisions, namely, Refinery, Pipeline, Marketing and Research and Development (R&D). The said divisions of the Corporation were independent of each other. The pipeline Division of Corporation through its Regional Office took steps for acquiring right to use for laying pipeline from Mathura to Jalandhar. A notification under Section 3 of the Petroleum and Mineral Pipeline (Acquisition of Right of User in Land) Act, 1962 was issued on May 20, 1981. On November 8, 1982, award Crl. Misc. No.M-27995 of 2008 [12] was made by the competent authority and compensation amount was disbursed. The Mathura-Jalandhar pipe passes through Rajpura. The land was not owned by Corporation when the pipelines were laid by the pipeline Division of the Corporation which is a separate Division from Marketing Division. The IOCL through its Regional office of Marketing Division at New Delhi purchased land measuring 13 bigha 6 biswa at Rajpura from the original owner Shahbeg Singh for a consideration of ` 9.59 lacs vide sale deed dated December 31, 1990 for the purposes of construction of a Depot for sale and distribution of petroleum products. A copy of the sale deed and layout plan has been placed on records as annexure P-1 to show that sale deed does not indicate that pipeline is passing through one corner of the plot of the land in dispute. Even the revenue record did not reflect the said position. The Engineering Department of Northern Region of Marketing Division of IOCL which was located at Delhi built the Rajpura Depot in 1991-92 after obtaining permission from Explosives Department. Thereafter Marketing Division of the Corporation decided to close the Rajpura Depot during the year 1997 and supply products from other locations. All the licenses/ approvals were surrendered Crl. Misc. No.M-27995 of 2008 [13] and the Rajpura Depot was closed w.e.f. 1997. In the year 1999, Punjab State Office of Marketing Division was created where under the activities of the State of Punjab, H.P., and J&K came under its jurisdiction. As at the time of creation of Punjab State Office, the Rajpura land was vacant with a boundary wall thereof, the sale deed dated December 31, 1990 was maintained as a title document of the Rajpura land in the title records of the office. As the Rajpura Depot had been de-commissioned in the year 1997, the land having been rendered vacant and unutilized, the Marketing Division of Corporation decided to dispose of the same. The process of sale of the land in controversy was taken up by the Punjab State office of the IOCL during the year 2005 and MSTC, a Government of India undertaking was appointed as an agent of the Corporation to dispose of the said land to the highest bidder. MSTC issued an open tender with an opening date of January 10, 2006. Complainant- NPL being the highest bidder having offered ` 2.11 crores was sold the land vide sale deed dated march 27, 2006 to respondent No.3. The sale proceeds were deposited with the IOCL. A copy of the sale deed has been appended with the petition as annexure P-2. Petitioners Crl. Misc. No.M-27995 of 2008 [14] claim that the lay out plan which was forwarded by the IOCL to MSTC was same as received by the Corporation from the original vender Shahbeg Singh alongwith the sale deed vide which the land in controversy was purchased by the Corporation on December 31, 1990. After the complainant had been transferred the title and possessions of the land, the pipeline Division issued a letter dated August 8, 2007 about the pipeline passing through the corner of the land. The complainant- respondent No.3 sent a legal notice to the Corporation expressing his grievances. The IOCL claims that it was at that stage the Corporation realized that pipeline was going beneath the land in controversy. In order to resolve the issue, a team of three officers was constituted which held series of discussion with the complainant. The complainant was not satisfied, therefore, the high powered committee was constituted by the Corporation and the matter was re-deliberated with the complainant Company. The process of amicably resolving the inconvenience caused to the complainant was carried out by the Corporation realizing that since with the closure of the Depot from 1997 onward and thereafter creation of Punjab State Office at Chandigarh, had created a considerable gap resulting in Crl. Misc. No.M-27995 of 2008 [15] inadvertently, without any mala fide on part of the Corporation. Corporation had conveyed its willingness to respondent No.3 to refund the amount of ` 2.11 crores paid as sale consideration of the said land alongwith interest at par with the prime lending rate of State Bank of India, for the corresponding period. The following options emerge from the meeting with the complainant:- “a) IOCL buys back the land for the same consideration, bears expenses incurred for registration and pays interest as per PLR of SBI from such date of sale till re-purchase; b) the parties appoint a Government approved valuer with mutual consent. The price of land he values is the price of land IOCL pays to NPL. c) IOCL helps NPL to sell the land through MSTC and also bears expenses for registration etc.” It is also an admitted fact that thought he process of negotiation was on, the complainant Company filed a writ petition in Delhi High Court on February 19, 2008 seeking a direction to the IOCL to remove oil pipeline trespassing the land of the complainant or to compensate him for the loss caused to him. The IOCL has filed a written statement in the Delhi High Court. Copy of the Crl. Misc. No.M-27995 of 2008 [16] writ petition and the reply of the IOCL have been appended as annexures P-3 and P-4, respectively. During the pendency of the writ petition, the complainant lodged a complaint against the petitioners under Section 420 IPC before the SSP, Patiala, alleging that the petitioners at the time of sale had not informed the complainant regarding the underlying pipeline, as such he had been cheated by the fraudulent act of the petitioners. The petitioners claim that no offence is made out against the petitioners even if the allegations in the complaint are presumed to be correct as no criminal liability can be foisted upon any of the petitioners as there had neither been any intention attributed to the petitioners for playing fraud with the complainant nor there is any oral or documentary evidence collected that the sale had been executed by IOCL through its agent selling the property to the complainant. Liability, if any, arisen out of the breach of contract is “civil liability”. It is claimed that Punjab State Office of the Marketing Division was not aware of the fact about the underground petroleum pipeline passing through a portion of the land nor the vendor Shahbeg Singh had revealed about the said fact to the Punjab State Office of the Marketing Division. Even the revenue record did not reflect the same. The Corporation has offered to re-purchase the land alongwith interest and at a present market price assessed by the valuer. The complainant has not even alleged that the petitioners had fraudulent or dishonest intention at the Crl. Misc. No.M-27995 of 2008 [17] time of making promise or representation. The petitioners have not made any false representation with knowledge that it was false. The complainant was never induced or deceived by the petitioners to purchase the property. The allegations levelled by the complainant are vague and uncertain and do not disclose the necessary ingredients of offence of cheating. A reply was filed by respondents No.1 and 2 on the ground that non-disclosure of the fact of existence of pipeline under the land in question at the time of sale makes out a case of cheating and conspiracy against the petitioners and that the matter has been enquired by S.P. City, Patiala and examined by DA (Legal) who have prima facie found that offence under Sections 420, 120-B IPC are made out against the petitioners. It is claimed by the State that the petitioners had full knowledge regarding the passing of pipeline from the plot of land acquired as it was acquired by IOCL. Respondent NO.3 has also filed reply claiming that the laying of pipeline had been done by IOCL and it was very much in the knowledge at every stage to the officials of the Company. Even in the sale deed executed before Sub-Registrar, Rajpura, the important fact that pipeline as well as the prohibition regarding the right of use was concealed but the purchaser was made to believe that the land is free from all encumbrances. The respondent- complainant was induced by the petitioners to participate in the bid of ` 2.11 crores against the reserve price of ` 79.79 lacs. The petitioners have filed a counter to the reply filed by respondent No.3, contending that at the most it is a case of civil liability. Following Crl. Misc. No.M-27995 of 2008 [18] documents have been placed on record subsequently through Crl.Misc. application:- “i) Annexure P-7, a letter dated February 23, 2008 written by IOCL for repurchase of the land at the same sale consideration with expenses incurred by the complainant or to purchase the land on the basis of the valuation done by the Government approved valuer with the consent of both the parties and offer to sell the entire land through MSTC with a promise that the complainant would be entitled to receive the full value consideration and Corporation will bear the cost of commissions and brokerage fee paid to MSTC. ii) annexure P-8- a notification dated May 25, 1981 under Section 3 (1) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in land) Act, 1962; iii) Annexure P-9, a notification under Section 6 (4) regarding acquisition of the land; iv) Annexure P-10, a letter written by Chief Manager (ops.)of Punjab State Office of IOCL intimating the complainant the rough plan showing the entry and exist point of pipeline. The said letter shows that width of the Mathura- Jalandhar pipeline is 55 Crl. Misc. No.M-27995 of 2008 [19] min and the pipeline is laid leaving 15 ft on one side and 40 ft. on other side on which the construction of building is not permitted. v) Annexure P-11 are the instructions regarding the safety in petroleum installation pipelines. vi) Annexure P-12 is a letter issued to District Collector, Patiala sent by Senior Construction Manager regarding rights of user regarding the land containing petroleum pipelines. vii) Annexures P-13 and P-14 are another letters issued by the Collector on the same subject. viii) Annexures P-15 and P-16 are the letters dated August 4, 1994 and September 6, 1994 sent to Tehsildar, Sirhind and Tehsildar Fatehgarh Sahib for entry of acquisition of right of user in the revenue record. ix) Annexure P-17 is a letter sent by Chief Operation Manager, MJPL, Ambala to Chief Manager (Operations), Punjab State Office, Chandigarh dated January 19, 2008 informing that the right of way of MJPL works out to be 381.5 meters. x) Annexure P-18 is a set of photographs of the land. Crl. Misc. No.M-27995 of 2008 [20] xi) Annexure P-19 is the instructions regarding practices and procedure for maintenance of the pipelines. xii) Annexure P-20 is the sale deed executed by Shahbeg Singh in favour of IOCL. xiii) Annexure P-21 is the arbitration agreement regarding dispute between the Corporation and buyers or sellers of the property with the Corporation. xiv) Annexure P-22 is an office order regarding the release of petitioner R.Narayanan as E.D. Corporate Affairs. xv) Annexures P-23 to P-28 are the office orders regarding the petitioners. Respondent No.3 has also placed on record valuation reports annexures R-2/7 to Annexures R/3/13. The complainant has filed a Misc. application seeking to withdraw the criminal proceedings against the petitioners if the matter pending in the Delhi High Court is amicably settled by the petitioners and the IOCL. In order to show that as per the valuation report prepared by Mr.Arun Mittal and associates the value of the land is `

79.79 lacs. The report of valuer is annexure R-3/7. Annexure R-3/2 is the letter sent by IOCL telling respondent No.3 that owner or occupier cannot construct any building or excavate any tank or wall on the land requiring him to remove the boundary wall. Annexure R-3/8, a letter dated March 7, Crl. Misc. No.M-27995 of 2008 [21] 2009 of M/s Arun Mittal and Associates has been produced indicating that the value of the property has been assessed to be nil in view of said situation. Annexure R-3/9 is the letter of the complainant dated February 23, 2008 accepting to second option of the Corporation to get the property valuated. The respondent- complainant in his misc. application has given an offer that he is willing to pay another sum of ` 2.11 crores to the IOCL, if they remove the pipeline and make the property free from encumbrances. Whether in exercise of inherent powers under Section 482 Cr.P.C., it will be permissible to exercise power has to be considered in the light of the parameters laid down by the Apex Court in State of Haryana Vs. Bhajan Lal and others, AIR 2004 SC 604. The High Court can exercise the powers under Article 226 of the Constitution of India and under Section 482 Cr.P.C. to interfere in the proceedings relating to cognizable offences to prevent the abuse of the process of any Court or otherwise, to secure the ends of justice but the power has to be exercised sparingly and that too in rarest of rare cases. In the following cases it is permission to exercise jurisdiction:- “1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Crl. Misc. No.M-27995 of 2008 [22] 2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or Crl. Misc. No.M-27995 of 2008 [23] where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The grievance of the complainant is that he has been wronged by the act of the IOCL. It is claimed by the complainant- respondent that the land was not free from all encumbrances and that he was persuaded to purchase the property by concealing the existence of underground MJPL. In order to set the civil wrong done to the petitioners he has already filed a writ petition (C) No. 1456 of 2008 in Delhi High Court. The respondent has levelled allegations in the writ petition that he is being deprived of the property in violation of Article 300A of the Constitution of India and that he has been cheated and that he is entitled to compensation. There has been violation of provisions of Transfer of Property Act and Sales of Goods Act. Is the right under Article 19 (1) (g) of the Constitution has been violated and that he had a legitimate expectation that State will act fairly. Specific prayer has been made by him in his writ petition for a direction for removal of the oil pipeline trespassing the land owned by him and for a direction to the Corporation to compensate the petitioner for loss caused to the complainant. Crl. Misc. No.M-27995 of 2008 [24] In the reply filed by the Corporation annexure P-4, the Corporation has denied any malafide intention of cheating or defrauding the complainant. The written statement in the writ petition has been reiterated in the present petition. The petitioners in their written statement have specifically taken up the plea in annexure P-4 that the grievance of the complainant was sympathetically discussed and the negotiations with regard to the settlement have taken place between the parties and it was decided between the complainant and Corporation that in case the complainant was not interested in retaining the portion of the land under which the pipeline is going he could sell back the said peace of land by taking proper purchase price. The said proposal was made even after the writ petition was filed. The complainant in order to gain wrongfully is claiming vimsical amount. It is also pertinent to observe that vide letter annexure P-7 issued before Registration of FIR, three offers were given to the complainant vide letter dated February 23, 2008 which are re-produced hereunder:- “1. The land admeasuring 13 bighas and 6 biswas which was sold to you for a consideration of Rs.2.11 crores approx. could be bought back by Indian Oil Corporation for the same consideration viz 2.11 crore plus the expenses incurred by you towards registering the said Sand-in your company/s name. In addition, we are also agreeable to pay interest at the Prime Lending Rate of State Bank of India as applicable to Long Crl. Misc. No.M-27995 of 2008 [25] Term Loans for the period covering the date of sale by Indian Oil Corporation to you till the date of re-sale by you to Indian Oil Corporation.

2. Alternatively, the said land could be evaluated by a Government approved valuer to be appointed through mutual consent between both the parties. The value so determined shall be the price at which the said land would be bought back by Indian Oil from Nimitaya Properties.

3. Indian Oil could help Nimitaya Properties to sell the entire land through Metal Scrap Trading Corporation (MSTC), a Government of India Undertaking and Nimitaya Properties would be entitled to receive the full value of consideration while Indian Oil Corporation would bear the cost of commissions and brokerage fees payable to MSTC.” The complainant admittedly consented to the second option and got the valuation of the land. On account of variance of the valuation, the matter could not be amicably settled. It is not out of place to observe here that during the course of the petition for quashing, an offer was given by the Corporation to re-purchase the land for a sum of ` 5 crores more than the double price for which it was purchased by the complainant whereas his claim is that the value of the property is nil on account of the Crl. Misc. No.M-27995 of 2008 [26] underneath pipeline running from the land in controversy. On May 18, 2010, surprisingly the complainant contended that the value of the property was estimated to be ` 45 crores. If a land purchased by the complainant for a sum of ` 2.11 crores is estimated by him to be worth ` 45 crores, it is not understood, as to how he has been cheated. In order to find out whether prima facie offence of cheating is made out against the petitioners, it will be apt to refer to judgment of Hridaya Ranjan Pd. Verma and others Vs. State of Bihar, AIR 2000 SC 2341. The observations of the Apex Court in para Nos. 13 to 17 are as under:- “13. Cheating is defined in Section 415 of the Code as, "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation - A dishonest concealment of facts is a deception within the meaning of this section.

14. The section requires - (1) Deception of any person. Crl. Misc. No.M-27995 of 2008 [27] (2) (a) Fraudulently or dishonestly inducing that person (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property.

15. On a reading of the section, it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do; in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent Crl. Misc. No.M-27995 of 2008 [28] conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under section 420 IPC and its allied offences under sections 418 and 423 has not been made out. So far as the offences under sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana & Ors. v. Bhajan Lal and Ors. (Supra) and as such warrants interference by the Court. Reading the Crl. Misc. No.M-27995 of 2008 [29] averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent no.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same”. In Hari Prasad Chamaria Vs. Bishun Kumar Surekha and others, AIR 1974 SC 301, the Hon’ble Supreme Court held that unless the complaint showed that the accused had dishonest or fraudulent intention at Crl. Misc. No.M-27995 of 2008 [30] the time the complainant parted with the money, it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. In G.V. Rao V. L.H.V. Prasad and others, (2000) 3 SCC 693 it was reiterated by the Hon’ble Supreme Court that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction ‘means rea’ on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered. In Uma Shanti Vs. State of Bihar (2006) 2 SCC (Crl.) 49, it was held that the breach of contract would amount to cheating only if intention to cheat was existing at the time of inception. If such intention developed later on, the same would not amount to cheating but it was held that remedy in the latter case lies before the civil Court by filing a properly constituted suit. Similar is the ratio of the judgment of Anil Mahajan Vs. Bhor Industries Ltd. and another, 2006 (4) RCR (Crl.) 834 and G. Sagar Suri Vs. State of U.P., 2000 (12) RCR (Crl.) 707. As per the allegations in the FIR, none of the petitioners has been specifically attributed intention to cheat from the very beginning, as none of the petitioners is beneficiary nor it is shown that any wrongful gain has been achieved by any of the petitioners causing wrongful loss to the complainant. Complainant is purchaser of an immoveable property which has been found to contain latent defect. Before the lodging of FIR, an offer has been made by the Company of the Crl. Misc. No.M-27995 of 2008 [31] petitioners to re-purchase the property at double the price for which it was sold. Rather an offer has been given before the registration of FIR to compensate the complainant with all means by bearing all the expenses and even paying the market value of the property existing today as determined by a Government approved valuer. Since the complainant claims that property is worth rupees more than ` 45 crores as per his valuation, which is not accepted by the Corporation, the Corporation cannot be compelled under the pressure of the criminal prosecution to agree to the terms and conditions of the complainant to compensate him. The dictionary meaning of word ‘encumbrance’ is a claim against a property by another party. Encumbrance usually impacts the transfer ability of the property and can restrict its free use until the encumbrance is removed. Most common instances of encumbrances occur in real estate such as an outstanding mortgage or unpaid property taxes. In the present case, the property in controversy from the very beginning is covered by statute having been acquired under the Petroleum and Minerals Pipelines (Acquisition of Right of User in land) Act, 1962 w.e.f. year 1981-82. The user of the land is controlled by the statute. The petitioners claim that only a corner of the property can not be used for permanent raising construction otherwise as per the provisions of law, the same can be used. Without expressing any opinion whether any construction can be raised on the major portion of the property in controversy, it is sufficient to observe here that the civil rights of the complainant are sub-judice before Delhi High Court in writ petition filed by the complainant. Launching of Crl. Misc. No.M-27995 of 2008 [32] prosecution during the pendency of his claim for compensation is nothing but an abuse of the process of the Court. When complainant seeks to impose criminal liability on an accused despite having alternative remedies in civil Courts, the continuation of proceedings is an abuse of the process of the Court requiring interference under Section 482 Cr.P.C. The malafide intentions of the respondent- complainant are apparent from the fact that an attempt has been made to pressurize the IOCL to compound the offence for a higher price. The admission of complainant is apparent from his application for placing on records annexures R-2/7 to R/3/13 and for placing on record additional facts wherein he has submitted that he undertakes to withdraw criminal proceedings against the petitioners if the matter pending in the Hon’ble Court of Delhi is amicably settled by the petitioners and the IOCL. The civil remedy having already been availed of by the complainant, continuation of criminal proceedings is nothing but a malicious device to harass the petitioners who are working for the Company. The proceedings against the petitioners are liable to be quashed solely on the ground that the FIR is absolutely silent about the fact as to how the petitioners are “incharge” of the Company or responsible to the Company for the conduct of its business. All the petitioners cannot be held vicariously liable on behalf of the Company unless and until it is averred and established that they are associated with the affairs of the Company and are responsible to the Company for the conduct of business. There does not Crl. Misc. No.M-27995 of 2008 [33] appear to be any material against the petitioners for having entered into a conspiracy to cheat the complainant. In view of the above discussion, I am of the opinion that in the absence of any incident of fraudulent or dishonest intention at the time of offering of the property of sale by the IOCL; no offence of cheating being made out even if the allegations in the FIR are presumed to be correct; the complainant- respondent No.3 having not been persuaded by any of the petitioners by any manner to enter into the sale transaction; the dispute between the complainant and the petitioners being of civil nature where compensation of the complainant for the alleged wrong having been done to him being the remedy; the civil remedy having already been availed of by the complainant; no material against the petitioners for having entered into conspiracy to cause any wrongful loss to the complainant; no wrongful loss having been caused to the complainant; the circumstances indicating the malafide of the complainant to pressurize the petitioners to settle the civil dispute and pay exorbitant compensation amount; there being no personal encumbrance imposed on the property; the existence of statutory encumbrance regarding raising of construction on part of the property in question which can be settled in civil proceedings, the continuation of criminal proceedings is nothing but an abuse of the process of the Court warranting interference by this Court. The petition is allowed. FIR No. 211 dated October 7, 2008 registered at Police Station Sadar Rajpura, District Patiala under Sections Crl. Misc. No.M-27995 of 2008 [34] 420, 120-B IPC and all the criminal proceedings arising therefrom are hereby quashed. December 24, 2010 sanjay (M.M.S.BEDI) JUDGE