Rajguru Nagar, Ludhaina, District Ludhiana. vs Singh Nagar, Ludhiana, District Ludhiana, Punjab

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Ms. J.S. Bedi and Mr. Naresh Jain, Advocates for the petitioners in both the petitions. Ms. Ravinder Kaur, Nihalsingh Wala, Additional Advocate General, Punjab for respondent no.1-State in both the petitions. Mr. Sukhwinder Pal Singh, Advocate for Mr. Amit Rawal, Advocate for respondent no.2 in both the petitions. -- Sham Sunder, J. This judgment shall dispose of Criminal Misc.No. 7745 of 2008, filed by Kamal Kishore alias Kamal Kumar and Criminal Misc. No. M-22976 of 2007, filed by Vinod Kumar alias Raju and another, petitioners, for quashing the complaint titled as Kuldeep Singh Ghai v. Joga Singh and others, filed under Sections 406, 420/34 read with Section 120-B IPC (Annexure P-1) as well as summoning order dated 28.05.2005 (Annexure P-2), pending in the Court of Additional Chief Judicial Magistrate, Ludhiana.

2. The complainant/respondent no.2, filed a criminal Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --3-- complaint, on the allegations that he is running his business in the name and style of M/s Ghai Estate Developers Limited. The complainant entered into an agreement to sell dated

20.09.2004 in relation to land measuring 4700 sq. yards, comprising khasra No.165/1-2-3, and 165/4/166/164, situated at village Bishanpur, Tehsil Dera Bassi, District Patiala, main road Zirakpur Chandigarh Ambala Highway, with Vaikunth Lal, (non-applicant)son of Satpal r/o B-55, Sargodha Colony, Ludhiana,for a total sale consideration of Rs.1,88,00,000/-. At the time of entering into the agreement to sell, the complainant received a sum of Rs.10.00 lacs as earnest money from Vaikunth Lal,accused (non-applicant). Out of the aforesaid amount of Rs.10.00 lacs, a sum of Rs.5.00 lacs was paid by Vaikunth Lal, accused (non applicant), vide cheque No.607859 dated 20.09.2004, drawn on Standard Chartered Bank, Feroze Gandhi Market, Ludhiana. It was further stated that it was agreed to between the complainant and Vaikunth Lal, accused, (non-applicant) that he (Vaikunth Lal) shall further pay a sum of Rs.40.00 lacs to the complainant upto 25.9.2004, on account of part payment of the bargain, but he failed to perform his own part of the contract. 2-A. It was further stated that the complainant, being the General Power of Attorney of Smt. Tarlochan Kaur wife of Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --4-- Chandeep Singh and Smt. Natasha wife of S. Preet Inder Singh son of Charanjit Singh, r/o 45 Aggar Nagar Extension, Ludhiana also entered into an agreement to sell dated

15.9.2004 with respect to the property having an area of 3974 sq. yard, comprising khasra Nos.413, 414, Khata Nos. 532/774, 533/775 as per jamabandi for the year 2001-02, situated at village Barewal Awana hadbast no.157, Tehsil and District Ludhiana at the rate of Rs.2325/- per square yard, with Vaikunth Lal, accused, and Jaswinder Singh(non-applicants). An amount of Rs.10.00 lacs was received by the complainant as earnest money.

3. Mohini Kulwant Singh Ghai wife of the complainant also entered into an agreement to sell double storyed incomplete building measuring 500 square yards for a total sale consideration of Rs.1,55,000,00/- with accused Joga Singh and received Rs.10.00 lacs as earnest money. Rs.14.00 lacs as additional earnest were also paid to the wife of the complainant. All the three bargains did not mature.

4. Ultimately a compromise was arrived at between the parties that the complainant shall return Rs.61.00 lacs to Joga Singh. Vaikunth Lal and Joginder Singh, accused (non- applicants) and they shall return the original agreements. It was stated that the amount was paid by the complainant to Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --5-- Vaikunth Lal, Joga Singh and Joginder Singh, but they did not return the original agreements, but only returned the laminated coloured photo-copies of the same. It was further stated that all the accused, thus, cheated the complainant.

5. The Counsel for the petitioners, have submitted that the petitioners were neither the vendors, nor the vendees, nor the attesting witnesses, nor were in any way connected with the bargain, which was entered into between the complainant, Vaikunth Lal, Joga Singh and Jaswinder Singh, accused,(non- applicants). They have further submitted that the role attributed to the petitioners was only to the effect, that they approached the complainant on behalf of the main accused for compromise, in pursuance whereof, the amount was paid to the non- applicants, but the original agreements were not returned. They have further submitted that the original agreements were returned to the complainant and the allegation that only coloured laminated copies were returned, was wrong. They have further submitted that the First Information Report on the same allegations was get registered and after due investigation, the same was found to be false. They have further submitted that the petitioners were held to be innocent. They have further submitted that the petitioners, did not commit any offence, and have been un-necessarily harassed by filing the criminal Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --6-- complaint, the quashing whereof, has been sought. They have further submitted that continuation of the complaint, and the summoning order, referred to above, would amount to sheer abuse of the process of the Court.

6. On the other hand, the Counsel for the respondents, submitted that no doubt, the agreements were executed by the complainant in favour of the non-applicants. They further submitted that the petitioners were instrumental, in approaching the complainant, and getting the compromise effected. They further submitted that as per the compromise, the original agreements were not returned to the complainant/respondent, but only photo coloured laminated copies thereof were returned. They further submitted that the original agreements in possession of the accused,(non applicants), could certainly be misused. They further submitted that the petitioners also connived with the non- applicants. They further submitted that continuation of the complaint and the summoning order would not be the sheer abuse of the process of the Court.

7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the petitions should be accepted, for the reasons to be recorded hereinafter. Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --7-- It is settled principle of law, that if the allegations contained in the FIR, prima-facie disclose the commission of a cognizable offence, then the Court in exercise of its inherent powers, under Section 482 Cr.P.C., cannot quash the same. The defence, if any, available to the accused, can be taken by them, during the course of the trial of the case. It is only, if on bare perusal of the allegations, contained in the FIR, that the Court comes to the conclusion, that no cognizable offence, is made out, or that such allegations are so absurd, that no prudent man would believe the same, then such an extra-ordinary power, under Section 482, can be exercised. In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604 (1), it was held that in following category of cases, the High Court may exercise all power, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However,such power should be exercised sparingly, and that too in the rarest of rare cases: 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-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --8-- 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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 FIR 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 Section 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 every 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 where there is a specific Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --9-- 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. Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

8. Now, adverting to the facts of the instant case, let us see, as to whether, it is a fit case, in which the complaint and the subsequent proceedings arising therefrom, should be quashed or not. The petitioners, as stated above, were neither the vendors, nor the vendees, nor the attesting witnesses, nor in any way related to the execution of the agreements to sell, in question. There is, no dispute, between the parties that the amount, which was obtained at the time of the execution of the agreements to sell, was returned. The role, attributed to the petitioners, was to the effect, that they were instrumental in approaching the complainant, on behalf of the main accused (non-petitioners) to effect compromise, but the terms and Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --10-- conditions, thereof were not complied with. Even, if it is assumed, for the sake of arguments, that the original agreements were not allegedly returned to the complainant, by the non-applicants, in pursuance of the terms and conditions of the compromise, no criminal offence was constituted against the petitioners. Even otherwise, FIR, in respect of the same allegations was got registered by the complainant and after due investigation, the petitioners were found innocent as the allegations were found to be false. The complaint against the petitioners, prima facie was filed with a malafide intention to wreck vengeance. Even in para no.10 of the complaint, it was in clear-cut terms, stated by the complainant that earlier FIR No.323 dated 18.11.2004, under Sections 406 and 420 IPC, was got registered at P.P. Kochar Market, Ludhiana against the petitioners and their co-petitioners in respect of the same allegations, but they being influential persons, no action was taken against them. The trial Court did not take into consideration the factum as to what happened in the FIR, which was got registered on the same allegations by the complainant. If on the basis of the allegations, contained in para no.10 of the complaint, that earlier an FIR with respect to the same allegations, was lodged, the trial Court had called for the report of the Investigating Agency, then, it would have come to know Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --11-- that the same was duly investigated, and the allegations were found to be false. The Court would have also come to know that the cancellation report was submitted and the same was accepted by the trial Court. The Court did not adopt such a course and, as such, the summoning order cannot be said to be illegal on this score too. Under these circumstances, continuation of the complaint and the summoning order would amount to sheer abuse of the process of the Court. Accordingly, the complaint, and the summoning order are liable to be quashed.

9. For the reasons recorded above, Criminal Misc. No.M-7745 of 2008, filed by Kamal Kishore alias Kamal Kumar and Criminal Misc. No.M- 22976 of 2007, filed by Vinod Kumar and another, are accepted. Resultantly, the complaint, titled as Kuldeep Singh Ghai v. Joga Singh and others, under Sections 406 and 420/34 read with Section 120-B IPC, (Annexure P-1) , pending in the Court of Additional Chief Judicial Magistrate, Ludhiana, and the summoning order dated 28.5.2005(Annexure P-2), qua the petitioners, are quashed.

10. Any observation, made in this order, shall not be taken, as an expression of mind on merits of the case. Crl. Misc. No.M-7745 of 2008 & Crl. Misc. No.M-22976 of 2007 --12--

11. The Registry is directed to send copies of the order, to the Courts concerned, immediately, by all modes of communication. February 10,2010 dinesh (SHAM SUNDER) JUDGE