Punjab-Haryana High Court
Arun Kakkar And Another vs Union Territory Of Chandigarh And ... on 10 April, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-35516-2012 (O&M)
Date of Decision: April 10, 2013
Arun Kakkar and another
...Petitioners
Versus
Union Territory of Chandigarh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Bhrigu Dutt Sharma, Advocate,
for the petitioners.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported
in the Digest?
NARESH KUMAR SANGHI, J.
1. Prayer in this petition filed under Section 482, Cr.P.C., is for quashing of FIR No. 124, dated 27.3.2009 (Annexure P-1), registered at Police Station, Manimajra, Chandigarh, for the offences punishable under Sections 120-B and 420, IPC, as well as the consequential proceedings including the charge-sheet (Annexure P-16).
2. Learned counsel submitted that the impugned FIR was lodged with a mala fide intention of wreaking vengeance against the petitioners as they did not support the complainants and M/s Dynamic Continental Private Limited, in their evil design of withholding the payment to Karamvir Singh @ Karambir Singh. CRM-M-35516-2012 (O&M) 2 He further submitted that there was no occasion for the petitioners to have visited Chandigarh for receiving the amount of `8,50,000/-, as alleged in the FIR. He further submitted that the complainants had concocted a totally false and fabricated story regarding the visit of the petitioners to a hotel at Manimajra, Chandigarh, inasmuch as, all the documents were prepared at Jalandhar, therefore, it is not believable that the amount would be paid to the petitioners on their visit to Chandigarh. He also argued that all the relevant papers were presented before the Investigating Officer showing the bona fide of the petitioners, but he failed to consider the same and presented the charge-sheet. On the strength of the above, he prayed for quashing of the impugned FIR and the consequential proceedings arising therefrom.
3. Heard.
4. Before dealing with the contentions raised by the learned counsel, it is deemed essential to notice the relevant portion of the FIR, which is extracted as under:-
"........1. On 19.11.08, one (i) Arun Kakkar, s/o Ved Parkash, and (ii) Vishal Kakkar, s/o Vipin Kumar, bot r/o EF-505, Kishan Nagar, Jalandhar, fixed a deal with us to sell their undivided share admeasuring 4 marlas 12 sq feet, out of total land admeasuring 89 kanal 18 marla comprised in khewat khatauni 35/44, khasra no. 7//21/2, 10//19, 20, 21, 22, 23, 26, 30, 11//5/1, 15/1, 16/1, 25/1/1, 13//1, 2, 9, 10/1, 12, 52/1, village Lohar Nangal, Tehsil and District Jalandhar, Punjab. On our CRM-M-35516-2012 (O&M) 3 having being asked about the partition of the land, they showed us a jamabandi and told us that the land was undivided and that we could get the partition done after the sale was executed in our favour in our joint names. We, the undersigned wanted to buy this land in our joint names. The deal was fixed for a total sale consideration of Rs. 23 lacs. We paid a sum of Rs. 1,00,000/- to Arun and Vishal in cash as bayana. Out of the balance sale consideration of Rs. 22 lacs, Arun and Vishal asked a sum of Rs. 12.5 lacs by way of DD in favour of Harish and balance 9.5 lacs in cash. 2. Arun and Vishal told us that they had earlier executed a General Power of Attorney dated 19.12.07 and an agreement to sell dated 13.7.07 in favour of one Harish Kumar. They assured us that they would get an agreement to sell executed by Harish Kumar in our favour and the power of attorney in favour of Harish Kumar and agreement to sell in favour of Harish Kumar shall be cancelled. 3. On 21.11.08, the papers were prepared, but the same were not signed on that day. 4. On 23.11.08, Arun and Vishal came to Chandigarh, where Sudesh Rana handed over to them a demand draft drawn in favour of Harish worth 12.5 lacs and Rs. 8.5 lacs in cash. 5. On 25.11.08, the papers prepared on 21.11.08 were registered in the office of the Sub-Registrar, Jalandhar. Harish Kumar signed and executed an agreement to sell in favour of Narinder Bhatia, and Arun and Vishal handed over the DD to Harish. After this, on the same day i.e. on 25.11.08, Arun and Vishal cancelled the General Power of Attorney executed by them in favour of Harish Kumar and executed a fresh irrevocable registered General Power of Attorney in favour of Sudesh Rana, so that Sudesh Rana could executed the sale deed in CRM-M-35516-2012 (O&M) 4 our favour, as per our convenience. We paid the balance sale consideration of Rs. 1,00,000/- in cash in the office of the Registrar. 6. As latest jamabandi was required for the purpose of execution of sale deed, we applied for the latest jamabandi. It was then that we came to know from the Patwari that the land was already partitioned. On enquiries, it was revealed that a partition order was made by the then Tehsildar on 23.2.07, proceedings ex parte against 98 land owners. The partition order appeared erroneous on the face of it. We, therefore, filed an application on 4.12.08 before the Tehsildar seeking setting aside of the said partition order, on the basis of the power of attorney executed by Arun and Vishal in favour of Sudesh Rana. On 5.12.08, we filed a suit in the civil court seeking stay against the defendants, who were also parties to the partition proceedings. A stay order was granted on the same day by the Civil Court. 8. On 15.1.09, we were surprised to learn that after hearing of the case was over and the same was adjourned to 9.2.09, Arun and Vishal appeared before the Court and withdrew the suit filed by us without intimating us, in collusion and conspiracy with the parties who participated in the partition proceedings and were also defendants in the said suit. It was also revealed that they have also cancelled the irrevocable Power of Attorney executed in favour of Sudesh Rana and had withdrawn the said suit. 9. That Arun and Vishal Kakkar sold the land to us by misrepresenting that the land was not partitioned, maliciously concealing the fact that the land was already partitioned, and deceitfully obtained the full sale consideration from us for the land, and maliciously cancelled the irrevocable Power of Attorney without intimating us and further withdrew CRM-M-35516-2012 (O&M) 5 the suit filed by us against the wrongful partition proceedings. Thus, they have cheated us by causing wrongful gain to themselves and wrongful loss to us to the tune of 23 lacs. .............."
5. Perusal of the FIR clearly spells out that on 25.11.2008, Harish Kumar executed an agreement to sell in favour of Narinder Bhatia and Arun, and a demand draft was handed over by Vishal to Harish Kumar. On the same day, the petitioners, Arun and Vishal, cancelled the General Power of Attorney, executed by them in favour of Harish Kumar, and executed a fresh irrevocable registered General Power of Attorney in favour of Sudesh Rana so that he (Sudesh Rana) could execute the sale deed as per the convenience of the complainants. On getting copy of the latest jamabandi, the complainants came to know that the land in dispute was already partitioned by the Tehsildar, vide order dated 23.2.2007. On the basis of the power of attorney executed by the petitioners, Arun and Vishal, in favour of Sudesh Rana, the complainants presented an application before the Tehsildar on 4.12.2008, for setting aside of the partition order. They also filed a civil suit in which stay was granted. The petitioners appeared before the Civil Court and withdrew the suit filed by the complainants, without intimation to them. The complainants also came to know that the irrevocable and registered General Power of Attorney, which was executed in favour of Sudesh Rana, was also cancelled by the petitioners. It was also alleged that the petitioners had sold the CRM-M-35516-2012 (O&M) 6 land in dispute to the complainants by misrepresenting about partitioning of the land in dispute. It was further alleged that the above said nefarious activities were done by the petitioners just to cheat the complainants for wrongful gain to themselves (petitioners) and to cause wrongful loss to the complainants to the tune of ` 23,00,000/-.
6. It is the conceded fact that the charge-sheet has already been submitted before the learned Area Judicial Magistrate for prosecution of the petitioners for the offences punishable under Sections 120-B and 420, IPC. There is no confusion in the mind of this Court that in an exceptional case, the High Court can quash the proceedings even after filing of the charge-sheet, but at the same time, it is also of the view that it cannot be done in a petition under Section 482, Cr.P.C., where disputed questions of facts are raised by the petitioner-accused. Hon'ble the Supreme Court has already interpreted the scope of Section 482, Cr.P.C., with regard to the quashing of the FIR. Reference can be made to the judgment of Hon'ble the Supreme in the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604. In paras 108 and 109 of the judgment, the following guidelines and pertinent observations have been made:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the CRM-M-35516-2012 (O&M) 7 inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 channelised 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 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.
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 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.CRM-M-35516-2012 (O&M) 8
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 Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. 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 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.CRM-M-35516-2012 (O&M) 9
109. 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 genuineness or otherwise of the allegations made in the F.I.R. 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."
7. In the case in hand, prima facie, material is available to presume that the petitioners did commit cheating with the complainants and obtained huge amount from them on the pretext of transferring of land by way of execution of the sale deed etc. The petitioners misrepresented the complainants with regard to the status of the land in dispute. Therefore, the case of the petitioners is not covered by the ratio of the judgment in Bhajan Lal's case (supra).
8. The argument raised by the learned counsel that the documents produced before the Investigating Officer during the course of investigation, were not considered by him and the charge-sheet was presented merely on the basis of the allegations levelled by the complainants' side, is not tenable. In such an eventuality, the petitioners can very well agitate their grievances before the learned Area Judicial Magistrate at the time of consideration of framing of the charges. It is apposite to mention here that the charge-sheet has already been presented before the learned Court below and nothing prevented the CRM-M-35516-2012 (O&M) 10 petitioners to take all the pleas raised in the present petition, before the learned Trial Court.
9. As a sequel to the above discussion, there is no merit in the arguments raised by the learned counsel for the petitioners. Accordingly, the present petition sans merit and the same is hereby dismissed.
(NARESH KUMAR SANGHI)
April 10, 2013 JUDGE
Pkapoor