Punjab-Haryana High Court
Phuli Devi And Others vs State Of Haryana And Another on 1 May, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl. Misc. No. M-14006 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Crl. Misc. No. M-14006 of 2013 (O&M)
Date of decision : -01.05.2013
Phuli Devi and others
...Petitioners
Versus
State of Haryana and another
..Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present: Mr. N.S. Shekhawat, Advocate
for the petitioners.
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Mehinder Singh Sullar, J. (Oral)
As strange as, it may appear, but strictly speaking, the tendency and frequency of the accused persons, illegally executing the fake agreement to sell, in order to cheat, to misappropriate the money of innocent persons and commit economic offences, at the first instance and then to delay the criminal prosecution, registered against them, by filing the frivolous petitions, in this respect, have been tremendously increasing day-by-day, in the present set up of the society. The present case is burning example of such like instances.
2. The epitome of the facts and material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the FIR (Annexure P-1)/record is that, although the petitioners- accused were not the actual owner of the land, in question, but still they have illegally entered into and executed an agreement to sell dated Crl. Misc. No. M-14006 of 2013 (O&M) -2- 21.06.2011 (Annexure P-13), in favour of the complainant Ramesh Saluja son of Chanderbhan-respondent No.2 (for brevity 'the complainant'), for a total consideration amount of `87 lacs per acre and fraudulently received an amount of `25 lacs as earnest money from him (complainant) at the first instance, `25 lacs on 28.06.2011 and other remaining amount on subsequent stages mentioned therein, in the presence of witnesses.
3. The complainant, inter alia, further claimed in the FIR, as under: -
"It was also agreed between the parties in this agreement that the complainant shall pay another sum of Rs.75.00 lacs to the accused before 10.07.2011 and a sum of Rs.01.00 crore shall be treated as earnest money. 3. That on 28.06.2011, the complainant paid another sum of Rs.25.00 lacs to the accused through the accused No.4 Vijay Kumar and accused No.5 Udey Veer in the presence of the witnesses namely Pawan Kumar and Vijay Kalra which is clear from the receipt of this amount signed by the accused No.4 & 5. 4. That on 10.07.2011, the accused No.4 Vijay took his share of earnest money from the complainants in the presence of the above said three witnesses namely Pawan Kumar, Vijay Kalra and Vikram Beniwal and gave a receipt of his share of earnest money to the tune of Rs.46,25,554/- on the back side of the agreement dated 21.06.2011 and told the complainant that the remaining accused have not come forward to take the remaining earnest money of their respective shares in this transaction, therefore, the complainant got prepared three demand drafts of Rs.9,37,500/- towards the shares of earnest money of Smt. Phuli Devi, Rajesh Kumar and Smt. Prem Kumari i.e. defendants No.1 to 3 from State Bank of Patiala, Auto Market, Hisar and IDBI Bank, Camp Chowk, Hisar and kept the share of Pardeep Kumar to the tune of Rs.9,37,500/- in cash ready with him and informed the accused No.1 to 3 by way of legal notice sent through Shri Sanjeev Bansal, Advocate, Panchkula on 12.07.2011 by registered post (as 10.07.2011 was Sunday and on 11.07.2011 the bank drafts were got prepared by the complainant) and told them that on 10.07.2011 a sum of Rs. 37,50,000/- was ready with the complainant and that he had made numerous calls to Rajesh Kumar on his Mobile No. 094670-24786 and that Rajesh Kumar accused did not respond to the repeated calls made by the complainant. In the end of this notice, the complainant through his advocate invited the accused No.1 to 3 and Pardeep Kumar to contact him to accept the balance earnest money within 5 days but in vain. Copy of the bank drafts, copy of legal notice and copy of postal receipts are attached herewith. 5. That from a bare perusal of the above said facts and circumstances, it is crystal clear that the complainant has always been ready and wiling to perform his part of the contract. The accused No.4 Vijay Kumar has already received his share of earnest money in this transaction while the shares of the earnest money of the remaining accused was ready with the complainant on 10.07.2011 but the accused No.1 to 3 did not come forward to collect their shares of remaining earnest money from the complainant on 10.07.2011 which was Sunday and that the complainant was further ready and willing to pay the shares of accused No.1 to 3 which is clear from the bank drafts of Rs.9,37,500/- each. 6. That even after sending legal notice, the plaintiff met the accused No.1 to 3 & 5 on 17.07.2011 and offered the above said remaining earnest money to them in cash but they refused to receive the remaining sale consideration from the complainant to the extent of their shares in this transaction and threatened that they are going to alienate the land in question in favour of some other person due to increase of the prices of lands in this area as a bye-pass is proposed to be constructed near the lands in question in near future and this fact was not in their knowledge on 21.06.2011."Crl. Misc. No. M-14006 of 2013 (O&M) -3-
4. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, the prosecution claimed that although the accused were not the owner of the land in dispute, but still they have illegally entered into an agreement with the complainant and fraudulently received an amount of `50 lacs, in lieu of earnest money & other huge amount, as mentioned here-in-above. Neither they have executed the sale- deed, nor have returned the impugned amount to him (complainant). In this manner, they were stated to have cheated and misappropriated the pointed amount of the complainant. In the background of these allegations and in the wake of complaint of the complainant, the present criminal case was registered against the petitioners-accused, vide FIR No. 1146 dated 13.12.2012 (Annexure P-1), on accusation of having committed the offences punishable under Sections, 420, 467, 468 & 471 read with Section 120-B IPC, by the police of Police Station Sadar Hisar, in the manner depicted here-in-above.
5. Sequelly, instead of submitting to the jurisdiction of the trial Court, now the petitioners-accused have straightway jumped to prefer the present petition, to quash the impugned FIR (Annexure P-1) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.P.C., leaving this Court in deep lurch to separate the grain from the bundles of chaff and to think twice, as to what extent, the findings on merits should be recorded with regard to the controversy raised in the instant petition, as the same would naturally have the direct bearing on the real issues between the parties, to be determined, during the course of trial by the trial Court. Be that as it may, but in the interest of Crl. Misc. No. M-14006 of 2013 (O&M) -4- justice, the principle of "safety saves" has to be kept in focus, while deciding this petition. That is how I am seized of the matter.
6. At the very outset, what cannot possibly be disputed here is that the Hon'ble Supreme Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R.(Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:-
(i) 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.
(ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.
(iii)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.
(iv) 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.
(v) 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.
(vi) 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 provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(viii)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."
7. Not only that, again the Hon'ble Apex Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R. (Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:-
"16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Crl. Misc. No. M-14006 of 2013 (O&M) -5- Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
8. Having heard the learned counsel for the petitioners at some length, having gone through the record, with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context.
9. At this stage, learned counsel has contended with some amount of vehemence that the civil suit for permanent injunction (Annexure P-2), filed by the complainant, against the petitioners-accused, in which, his injunction application was dismissed, by means of order dated 16.09.2011 (Annexure P-4), was dismissed as withdrawn, by the trial Court, by virtue of order dated 10.12.2011 (Annexure P-5). Then, he (complainant) filed a civil suit for possession by way of specific performance, to enforce the impugned agreement to sell (Annexure P-13). The argument is that thereafter the complainant filed a criminal complaint (Annexure P-8) against them (petitioners), which was also withdrawn by him, by means of order dated 18.12.2012 (Annexure P-12). The argument further proceeds that indicated civil suit & criminal complaint were withdrawn and since the dispute is purely of a civil nature and civil suit for specific performance is pending, so, the present criminal prosecution against the petitioners-accused is liable to be quashed. Crl. Misc. No. M-14006 of 2013 (O&M) -6-
10. Such, thus, being the legal position and material on record, now the short & significant question though important that arises for determination in this petition is as to whether the present criminal prosecution initiated against the petitioners-accused is liable to be quashed or not?
11. Having regard to the lengthy contentions of learned counsel for the petitioners, to me, the answer must obviously be in the negative.
12. At the first instance, the pointed arguments of learned counsel for the petitioners appeared to be somewhat attractive but when the matter was examined in regard to actual controversy between the parties and record, then I cannot help observing that these submissions are not only devoid of merit but misplaced as well.
13. As is evident from the record that the complainant claimed that the accused were not the owner of the land in dispute, but still they have illegally entered into and executed an agreement to sell with the complainant and fraudulently received an amount of `50 lacs, in lieu of earnest money. Neither they have executed the sale-deed, nor have returned the impugned amount to him (complainant). In this manner, they were stated to have cheated and misappropriated the pointed amount of the complainant. In other words, very direct and specific allegations of cheating and misappropriating the impugned amount of `50 lacs are assigned to the petitioners-accused in this regard.
14. Likewise, the bare perusal of the agreement to sell (Annexure P-13) would reveal that the columns of mutation Nos., khewat Nos., Crl. Misc. No. M-14006 of 2013 (O&M) -7- khatoni Nos. and year of jamabandi were intentionally left blank, by the accused. So much so, Phuli Devi did not intentionally sign it, in order to cheat the complainant. It cannot possibly be disputed here is that initially the complainant has filed a civil suit for permanent injunction (Annexure P-2) to protect his rights in the land in question. Petitioners filed the written statement (Annexure P-3), in which, they have admitted the execution of the agreement to sell (Annexure P-13) but they themselves claimed it to be based on fraud and misrepresentation. In other words, on the one hand the petitioners are admitting the execution and factum of the agreement to sell, at the same time, they have claimed that the impugned agreement to sell executed by them in favour of the complainant was based on fraud and misrepresentation.
15. Not only that, the trial Court dismissed the injunction application of the complainant mainly on the premises that the agreement to sell (Annexure P-13) is not a valid agreement, by virtue of order dated 16.09.2011 (Annexure P-4). The operative part of which is as under: -
"On careful perusal of the agreement, placed on the file by the plaintiff, it is clear that it does not bear signatures of Smt. Phooli Devi, Rajesh, Pardeep and Prem Kumar where there mention of payment. Thus, it is clear that it is a forged agreement, whereas, the original agreement placed reliance upon by the defendant is having revenue stamps which bears signatures of Udaybir, Vijay Kumar, Phuli Santosh etc. It shows that the stamp of purchase for the purpose of writing the aforesaid agreement on 4.4.2011 has been attested by the Notary and identified by Narender Sihag, Advocate. Thus, it shows the genuineness of this agreement, which is prior in time to the agreement, placed reliance upon by the plaintiff. Thus, on comparing the two documents, the document placed reliance upon by the defendants seems genuine."
28. Therefore, plaintiff has no prima facie case in their favour for grant of injunction. Moreover plaintiffs preferred to give notice to Pardeep Kumar who was dead on 28.6.2011 and subsequently on 11.7.11 also, it clearly shows that fraud is played by the plaintiffs and the entire agreement is forged because no payment was given by them. Therefore, agreement dated 4.4.2011 will prevail and the Release deed will also prevail. As the defendants are owners of the land they should not be restrained from selling the aforesaid land otherwise they will suffer irreparable loss which cannot be compensated in terms of money."
Crl. Misc. No. M-14006 of 2013 (O&M) -8-
16. Meaning thereby, the petitioners-accused had the intention to cheat the complainant from the very beginning. On the one side they have cheated the complainant and fraudulently received an amount of `50 lacs in lieu of earnest money, on the contrary, they are terming the same very agreement to sell (Annexure P-13), based on fraud and misrepresentation. In this manner, they cannot legally be permitted to blow hot and cold in the same breath. That means, it clearly proves the guilt of petitioners- accused, in this relevant connection.
17. Similarly, the mere fact that earlier complaint (Annexure P-8) filed by the complainant was subsequently dismissed as withdrawn, ipso facto, is not a ground, much less cogent, to negate the claim of the complainant in this respect. Therefore, the civil suits filed by the complainant against the petitioners to protect/enforce his legal rights and simple withdrawal of complaint would not debar him, in any manner, to initiate the present criminal prosecution (FIR) against them, as contrary urged on their behalf.
18. Faced with the situation, the next celebrated argument of learned counsel that the dispute is purely of a civil nature and since the civil suit for specific performance filed by the complainant is pending, so, the present FIR is liable to be set aside, again lacks merits. As indicated earlier, the mere filing of civil suit to protect his right, by the complainant, are altogether entirely a different matter and has got no nexus or co- relation with the criminal offences of cheating committed by them. The indicated orders of civil court have got no direct bearing in the instant criminal controversy, in this connection.
Crl. Misc. No. M-14006 of 2013 (O&M) -9-
19. There is yet another aspect of the matter, which can be viewed entirely from a different angle. What cannot possibly be disputed here is that the jurisdiction of civil and criminal court is entirely different and distinct from each other. The matter of cheating and misappropriation as in the present case squarely falls within the domain of criminal Court and the order of civil court would not debar the complainant to prosecute the petitioners-accused, in this relevant context. This matter is no more res integra and is now well settled.
20. An identical legal question came to be decided by the Hon'ble Apex Court in cases M.S.Sheriff and another v. State of Madras and others 1954 AIR (SC) 397; Kamaladevi Agarwal v. State of West Bengal 2001 AIR (SC) 3846; K.G.Premshanker v. Inspector of Police and Anr. 2002 AIR (SC) 3372; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 AIR (SC) 2119 and Smt.Rumi Dhar v. State of West Bengal and another 2009(2) RCR (Criminal) 704.
21. Having interpreted the provisions of sections 300, 482 Cr.PC and sections 40 to 43 of the Evidence Act, it was ruled that "standard of proof required in two proceedings i.e. civil & criminal cases, is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other distinct matter, as both the cases have to be decided on the basis of the evidence adduced therein. Each case has to be decided on the basis of its own Crl. Misc. No. M-14006 of 2013 (O&M) -10- facts." It was also held that judgment of civil Court is not always a good ground to quash the criminal proceedings and the High Court should be slow in interfering with the proceedings at the initial stage merely on the ground of pendency of the civil suit.
22. Therefore, if the nature of accusations of criminal conspiracy, cheating, mis-appropriation of huge amount in question, material evidence, legal position and totality of the facts and circumstances of the case, as discussed hereinabove, are put together, then, to me, the conclusion is inescapable that there is an ample evidence on record to prosecute the petitioners.
23. Sequelly, the cosmetic contentions of learned counsel that the allegations levelled against the petitioners are vague & false and there is no cogent evidence on record against them, again sans merit. The direct allegations of cheating and misappropriation are assigned to them. The stage of production of evidence has not yet reached in the main case. Moreover, what would be the effect of previous litigations, whether all the essential ingredients of cheating and misappropriation are complete or not and all other submissions, relatable to the appreciation of evidence (as now sought to be urged on their behalf), would be the moot points to be decided during the course of trial. If all such intricate questions, which require determination by the trial Court, after production of evidence by the parties, are to be decided by this Court, in the absence of any evidence in this respect, in the garb of petition under section 482 Cr.PC, then the sanctity of the trial would pale into insignificance and amount to nullify Crl. Misc. No. M-14006 of 2013 (O&M) -11- the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible.
24. Moreover, it is now well settled principle of law that the High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon'ble Supreme Court in case U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi and another (2009) 2 SCC 147.
25. Therefore, the Bench mark set out in the aforesaid judgments and essential ingredients for quashing the impugned FIR (Annexure P-1) at this initial stage are totally lacking in this case. Hence, the contrary arguments of the learned counsel for the petitioners "stricto sensu"
deserve to be and are hereby repelled under the present set of circumstances, as the ratio of law laid down in the indicated judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
26. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioners.
27. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side Crl. Misc. No. M-14006 of 2013 (O&M) -12- during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such.
28. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded only for a limited purpose of deciding the present petition under Section 482 Cr.P.C. and not otherwise.
May 01, 2013 (Mehinder Singh Sullar)
naresh.k Judge
Whether to be referred to reporter? Yes