Punjab-Haryana High Court
Naresh Kumar vs State Of Punjab And Another on 22 February, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-65923 of 2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Misc. No. M-65923 of 2006 (O&M)
Date of decision : 22.02.2012
Naresh Kumar ......Petitioner
versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. J.S. Bedi, Advocate
for the petitioner
Ms. Gagan Mohini, AAG, Punjab
Mr. Parveen Kumar, Advocate
for respondent No. 2
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RITU BAHRI , J.
The present petition has been filed under Section 482 Cr.P.C. is for quashing of F.I.R No. 119 dated 15.12.2004 under Sections 420/465/467/468/471 of the Indian Penal Code (for short 'the Code') (Annexure P-7), registered at Police Station City Gurdaspur, Punjab as F.I.R No. 39 dated 25.04.2002 under Sections 420/120-B of the Code has already been registered against the petitioner on the same incident.
The case of the petitioner in brief is as under:-
The petitioner was owner of the property namely Tej Building. Parveen Kumar-husband of the respondent No. 2 was a very good friend of petitioner. He (Parveen Kumar) took advantage of good friendship and fraudulently got signatures of the petitioner on blank papers and later on Crl. Misc. No. M-65923 of 2006 (O&M) -2- them converted them into lease deed as well as agreement to sell of the property namely Tej Building in favour of his wife i.e respondent No. 2. Thereafter, a civil litigation started between the parties with respect to the aforesaid property and civil cases are pending consideration in different Courts at Gurdaspur.
Parveen Mahajan-husband of respondent No. 2 got F.I.R No. 39 dated 25.04.2002 under Section 420 and 120-B of the Code registered against the petitioner and others namely Shanta Chopra, Rajnish Chopra, Nanu Chopra, Gurcharan Singh Bedi, Jasjit Singh Bedi and Manjit Singh Bedi (Annexure P-1). The allegations levelled against the petitioner was that inspite of executing an agreement to sell dated 22.12.1999 in favour of his wife Poonam Mahajan, the petitioner got sale deed executed in favour of S. Gurcharan Singh Bedi on 03.04.2000 and thus cheated Parveen Kumar and his wife. After investigation, charges were framed against the petitioner as well as Parveen Kumar (Annexure P-3/T).
Respondent No. 2 got another F.I.R No. 119 dated 15.12.2004 under Sections 420/465/467/468/471 of the Code against the petitioner and other persons who were also accused in F.I.R No. 39 of 2002 (Annexure P-7/T). The F.I.R relates to the same property i.e Tej Building, which is also subject matter of dispute in F.I.R No. 39 of 2002.
Respondent No. 2 filed a suit for specific performance of agreement to sell dated 22.12.1999 against the petitioner or in the alternative a suit for recovery of Rs. 2.50 lacs. The said suit was partly decreed vide judgment and decree dated 01.04.2003 and relief of specific performance of agreement to sell was declined by the learned trial Court (Annexure P-6) by giving a finding that Poonam Mahajan was not ready and willing to perform her part of the agreement. However, the learned trial Court decreed suit for recovery of Rs. 2.50 lacs with 12% interest against Crl. Misc. No. M-65923 of 2006 (O&M) -3- the petitioner. The appeal against the said judgment is pending before the learned First Appellate Court.
Learned counsel for the petitioner has referred to order dated 26.11.2010 passed by the Judicial Magistrate Ist Class, Gurdaspur whereby the statement of the complainant/respondent No. 2 in F.I.R No. 39 of 2002 was recorded who has stated that the matter has been duly compromised with the accused and thereafter, the matter was disposed of being compromised and accused was acquitted of the charge. Order dated 26.11.2010 is taken on record as Annexure A-1.
Quashing of F.I.R No. 119 dated 15.12.2004 under Sections 420/465/467/468/471 of the Code is being sought on the ground that two F.I.R's with respect to the same cause of action is not maintainable. The Court cannot take cognizance of the second F.I.R. Reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of T.T. Antony vs. State of Kerala, 2001( 6 )SCC 181.
The short question arises for consideration before this Court is whether continuation of the criminal proceedings in F.I.R No. 119 of 2004 against the petitioner with respect to agreement to sell dated 26.12.1999 of a building for Rs. 2.95 lacs after taking the earnest money is liable to be set aside?
Accused Naresh Kumar on 03.04.2000 had made a registry in favour of Gurcharan Dass and thus have cheated the complainant in this manner.
It is not in dispute that the civil suit was filed by Poonam Mahajan seeking specific performance of agreement to sell dated 22.12.1999 has been partly decreed by the trial Court for recovery of Rs. 2.50 lacs from the petitioner (Annexure P-6). It is also not disputed that the parties have compromised the matter in F.I.R No. 39 of 2002, which was Crl. Misc. No. M-65923 of 2006 (O&M) -4- registered against the petitioner and other persons.
Reliance has been placed on the judgments of Hon'ble the Supreme Court in the cases of Ram Biraji Devi and another vs. Umesh Kumar Singh and another, 2006(3) SCC (Criminal) 176 and Inder Mohan Goswami and another vs. State of Uttranchal and others, 2007 (4) RCR (Criminal) 548 wherein it has been held that once in an agreement to sell, the accused had accepted the earnest money and thereafter, the agreement to sell was cancelled after due notice to the complainant and the land had been sold to another party, no offence under Sections 420 and 467 of the Code is made out as the dispute is of civil nature. In para 38, it has been observed as under:-
38. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts 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 need not be fraudulent or dishonest. 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 a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.
In the facts of the present case, respondent No. 2 and her husband Parveen Kumar had business and friendly relation with the petitioner. The petitioner and Parveen Kumar wer facing trial in F.I.R No. 39 dated 25.04.2002 under Sections 420/120-B of the Code qua the same property. Parveen kumar had registered the aforesaid F.I.R No. 39 against Crl. Misc. No. M-65923 of 2006 (O&M) -5- the petitioner and others qua the same property. This matter has now been compromised and was at the stage of recording of evidence. Once the dispute qua the same property has been settled between the parties, continuation of proceedings in the second F.I.R NO. 119 are not called for. At best, respondent No. 2 can claim the recovery of earnest money, which has already been decreed in her favour, vide judgment and decree dated 01.04.2003(Annexure P-6).
It will not be out of place to mention here that in F.I.R No. 119, cancellation report had been recommended by the SHO Police to SSP Gurdaspur who in turn sought the opinion of District Attorney. The District Attorney stated that F.I.R No. 119 deserves to be cancelled. Report of SHO is dated 01.01.2005 along with noting of District Attorney (Annexure P-8/T). Thereafter, the police authorities prepared the cancellation report in F.I.R No. 119 of 2004. Cancellation report is dated 20.01.2005 (Annexure P-9) However the Superintendent of Police investigated the matter in the second F.I.R No. 119, recommended that proceedings under section 182 Cr.P.C be initiated against Poonam Mahajan and action can be taken against the officer who has registered the F.I.R. The report has been accepted on 08.01.2005.
Hon'ble the Supreme Court in a case of 'State of Maharashtra vs. Sayed Mohammed Masood and another, 2010(1) RCR (Criminal) 177 has held that simple breach of contract or a case involving pure civil dispute would not attrract the penal provisions contained in the IPC either under Sections 406 or Section 420 IPC thereof. Every breach of contract would not give rise to an offence of cheating and only in those case breach of contract would amount to cheating where there was any deception played at the very inception. If the intention of cheat has developed later on, the same cannot amount to cheating. In paragraph 15 , Crl. Misc. No. M-65923 of 2006 (O&M) -6- it has been held as under:-
In Dhanesh Badarmal Jain (supra), the court found only a civil liability on the part of the accused and opined that it was at best a case of interpretation of agreement, stating "16. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of Respondent 1-plaintiff in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents.
It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice."
A cancellation report was submitted in F.I.R No. 119 which was duly accepted and proceedings under section 182 Cr.P.C was ordered to be initiated against Poonam Mahajan. The trial Court has partly decreed Crl. Misc. No. M-65923 of 2006 (O&M) -7- the suit in favour of respondent No. 2 for recovery of earnest amount i.e Rs. 2.50 lacs from the petitioner, vide judgment dated 01.04.2003 (Annexure P-6) therefore, the proceedings initiated in F.I.R No. 119 dated 15.12.2004 under Sections 420/465/467/468/471 of the Code is an abuse of process of law.
F.I.R No. 119 dated 15.12.2004 under Sections 420/465/467/468/471 of the Code (Annexure P-7), registered at Police Station City Gurdaspur, Punjab is quashed with all consequential proceedings against the petitioner.
Accordingly, this petition is allowed.
(RITU BAHRI) JUDGE 22.02.2012 G.Arora