Punjab-Haryana High Court
Sheel Kumar Jain vs Jagdish Kaur Phul And Others on 18 August, 2011
Author: Sabina
Bench: Sabina
CRM-M No. 20908 of 2007 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRM-M No. 20908 of 2007 (O&M)
Date of decision: 18.8.2011
Sheel Kumar Jain
....... petitioner
Versus
Jagdish Kaur Phul and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.N.S.Shekhawat, Advocate ,
for the petitioner.
Mr.G.S.Virk, Advocate for
Mr.G.S.Nagra, Advocate,
for respondents No.1 to 3.
Mr.G.S.Brar, AAG, Punjab.
****
SABINA, J.
The petitioner has filed this petition under Sections 482 of the Code of Criminal Procedure, 1973 for quashing of complaint No.492/ 28.8.2003 titled as Jagdish Kaur Phul and others vs. Kesar Singh and others (Annexure P-1) as well as the summoning order dated 29.11.2004 (Annexure P-2), whereby the petitioner was summoned to face the trial under Sections 420, 120-B of the Indian Penal Code 1860 and all the subsequent proceedings arising therefrom.
The contents of the complaint (Annexure P-1) read as CRM-M No. 20908 of 2007 (O&M) 2 under:-
1.That the complainants are non agriculturists and are residents of town.
2. That they and many persons of in and near Chandigarh came to know, that the accused No.4 has created a colony for the construction of houses near Chandigarh, in village Kandala P.S.Sohana.
3. That the complainants contacted the accused, Accused No.4 who showed a map for the houses to be constructed and on further questioning they were told, that the colony is approved by PUDA.
4. That Rachan Singh accused who is an agriculturist of village Kardala told the complainants, that he had given General Power of Attorney to accused No.1 and 2 and either of them can sell the plots where accused No.4 is creating a colony and that accused No.4 is a colonizer, who shall develop the colony, like construction of roads, laying sewerage, electricity lines and other amenities for the colony.
5. That the complainants contacted all the accused and particularly accused No.4 who told that he has got the colony approved from PUDA and showed the plan in which plots were numbered.
6. That believing accused No.4 that the colony was approved by PUDA as per the map shown to them by accused, the complainants were tempted to buy the plots.
7.That complainant No.1 purchased 0-7 marla of land CRM-M No. 20908 of 2007 (O&M) 3 from accused No.4 through his GPA accused No.1 for a sum of ` 1,25,000/- in the shape of two plots and plot No.149 and 149-A, although in the registered sale deed only ` 49,000/- was shown as sale price. Complainant paid ` 15,000/- on 11.10.97 in cash in advance and ` 50,000/- on 16.10.1997.
8. That complainant No.2 Harminder Singh has purchased land area 200 square yards numbering plot No.132-A for ` 25,000/- in advance on 22.9.1992 vide receipt No.102 for total price of ` 1,25,000/- . The area purchased by complainant No.2 is 0-7 marla and sale deed was executed on 10.11.97. Sale deed in his favour was by accused No.4 through his GPA accused No.1.
9. That the complainant No.3 purchased 0-3 marlas of area from accused No.3 through accused No.1 as his GPA vide sale deed dated 10.11.1997 for ` 21,000/-
10. That the complainants and many other persons who have purchased various plots of land of Rachan Singh accused have been meeting all the accused, but all of them say, that accused No.4 is going to start the development of colony and then plot purchased by every body shall be pointed out at the spot.
11. That about 7 years have passed, but none of the accused and particularly accused no.4 have done anything to develop the colony or even hand over the possession of the plots sold to the complainants and CRM-M No. 20908 of 2007 (O&M) 4 many other buyers of our kind.
12. That the complainants have verified from the PUDA office, no such colony at village Kandala is approved by it.
13.From the facts stated above, it is evident, that all the accused conspired together to cheat the complainants and other persons by assuring them that the colony is got approved by PUDA and buyers can build their houses on the plots purchased by them have fleeced lakhs of rupees, without even telling them, where their plots are located, what to say of handing over the possessions.
14. That the complainants and other such persons have purchased small plots for the purpose of buildings their houses, and not for agricultural purposes, knowing that village Kandala is within periphery of Chandigarh and without approved colony by PUDA residential houses can not be built with in periphery of Chandigarh.
15. That the complainants had gone to the spot, no plot is carved out by them. Accused No.4 is in possession of the area sold to the complainant.
16. That the act of the accused amounts to offences u/s 420 and 120-B IPC.
It is therefore, prayed that the accused to be summoned and be punished under law, in the interest of justice."
After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed.
In the case of State of Haryana vs. Bhajan Lal,, 1992 CRM-M No. 20908 of 2007 (O&M) 5 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, 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.
(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 no disclose the commission of any offence and make out a case against the accused. CRM-M No. 20908 of 2007 (O&M) 6 (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 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 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 where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or CRM-M No. 20908 of 2007 (O&M) 7 genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." A perusal of the complaint reveals that the allegations have been levelled against the petitioner that he had created a colony for construction of houses near Chandigarh. The petitioner had also showed a map qua construction of houses to the complainants. It has also been averred in the complaint that the complainants had purchased the land through the petitioner. However, para Nos. 6 and 7 to the petition reads as under:-
"6. That the petitioner humbly submits that the complainants had not approached the Hon'ble Courts with clean hand. The complainants wrongly alleged that the land was purchased from accused No.4 i.e. Present petitioner in October/ November, 1997. The petitioner is in possession of the sale deeds as mentioned in the complaint and can be shown at the time of the arguments, if so required. In reality complainant No.1 purchased the land from Rajiv Kumar Sidhi, co-accused, who is GPA of Rachan Singh, co-accused. Similarly complainant No.2 also purchased a land from Rajiv Kumar Sidhi, co-accused. Still further complainant No.3 also purchased the land of Rachan Singh through Kesar Singh admittedly. Thus, it is apparent that the very basis of the complaint is wrong and apparently the petitioner has been falsely implicated. Even in the summoning CRM-M No. 20908 of 2007 (O&M) 8 order, it has been wrongly alleged by the learned JMIC, Kharar that the complainant had purchased 7 marlas of land from accused No.4 i.e. the petitioner through his GPA Kesar Singh and even complainant No.2 is stated to have purchased the land from the present petitioner. A perusal of the summoning order Annexure P-2 would clearly reveal that the said order suffers from the vice of non-application of the mind. The sale deeds were already on record before the learned JMIC, which clearly show that the land was sold by Rachan Singh through his GPAs Kesar Singh and Rajiv Kumar Sidhu. Thus, the summoning order is legally unsustainable.
7. That the complainants have concealed the material facts from this Hon'ble Court and have stated the wrong and incorrect facts. In reality the petitioner i.e. Accused No.4 in the complaint, has purchased land measuring 14 kanals 0 marla as per sale deed dated 10.3.1998 from Kesar Singh, GPA of Rachan Singh. Still further the petitioner also purchased the land measuring 11 kanal 0 marlas on 10.3.1998 through Surender Parsad son of Brij Lal attorney of Rachan Singh. Thus, the present petitioner came in the picture, when the complainants had admittedly purchased land from Rachan Singh, through his GPA. Even now, the revenue record shows that the present petitioner is in possession of the land measuring 14 kanals and 11 kanals as per his sale deeds. Thus, the allegations CRM-M No. 20908 of 2007 (O&M) 9 against the present petitioner are palpably false, baseless and imaginary.
The reason for falsely implicating the present petitioner is that except the present petitioner, the possession was not offered to the complainants. Since the possession of the land had already been delivered by Rachan Singh to the present petitioner, the petitioner refused to cooperate with the complainants. Later on the complainants got annoyed due to the non cooperation of the petitioner and also impleaded the petitioner as an accused, just to extort money and to harass and humiliate him. Otherwise, the present petitioner has no concern with the purchase of the land by the complainant No.1 to 3/ respondent No.1 to 3."
Reply filed by respondents No.1 to 3 to the said paras read as under:-
"6. That para No.6 of the criminal miscellaneous petition is wrong and denied. All the persons mentioned in the complaint are accused and conniving with each other. They have mislead the answering respondents and to grab money they have been told that colony will be developed on the area purchased by the answering respondent. But in fact no development was made and money was taken from the answering respondents.
7. That para No.7 of the criminal miscellaneous petition is wrong and denied. However, the petitioner purchased land along with the land sold to the answering respondents for developing colony and later on he could CRM-M No. 20908 of 2007 (O&M) 10 not get permission from the PUDA and as such he has committed an offence under Section 420/ 120-B IPC. Even till today the answering respondent had not been put into possession of the land purchased by them. Thus, the petitioner has made false averments in this paragraph and present petition is liable to be dismissed."
Thus, from a combined reading of the above paragraphs, it transpires that the petitioner had not sold the property to the complainants on the basis of general power of attorney executed by the owner. Complainant No.1 Jagdish Kaur Phul had purchased the land/property owned by Rachan Singh through his attorney Rajiv Kumar Sidhu. Complainant No.2 Harminder Singh had purchased the land from Rajiv Kumar Sidhu. Complainant No.3 Amrik Singh had purchased the land belonging to Rachan Singh through Kesar Singh. The petitioner rather purchased the land measuring 14 kanals belonging to Rachan Singh through Kesar Singh being his attorney holder on 10.3.1998.
Learned counsel for the respondents, during the course of arguments, also could not deny the averments made in para Nos. 6 and 7 of the petition. Since the petitioner had not sold any land/ property to the complainants, it appears that he has been falsely involved in this case. The land purchased by the complainants exists in their names. It has been averred by the counsel for the petitioner that the partition proceedings are pending qua the land owned by the complainants and the petitioner and the original land owner. Since the petitioner did not own any land at the time of purchase of land by the complainants in the year 1997, the petitioner had no occasion to CRM-M No. 20908 of 2007 (O&M) 11 promise the complainants that he would carve out a colony. The petitioner himself rather purchased the land measuring 14 kanals in the year 1998 from Rachan Singh through his attorney Kesar Singh. In the facts and circumstances of the present case, the continuation of the criminal proceedings against the petitioner would be nothing but an abuse of process of law.
Accordingly, the present petition is allowed. Complaint No.492/ 28.8.2003 titled as Jagdish Kaur Phul and others vs. Kesar Singh and others (Annexure P-1) as well as the summoning order dated 29.11.2004 (Annexure P-2), and all the subsequent proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA) JUDGE August 18, 2011 anita