Punjab-Haryana High Court
Balbir Singh And Others vs Joginder Kaur Sangha And Another on 11 October, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Misc. No. M- 37539 of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. M- 37539 of 2011
Date of Decision:11.10.2013
Balbir Singh and others
---Petitioners
Versus
Joginder Kaur Sangha and another
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr.Surinder Sharma, Advocate,
for the petitioners
Mr. Ashit Malik, Advocate
for respondent No. 1
Mr. Amarinder Singh Klar, AAG, Punjab
for respondent-State
***
REKHA MITTAL,J.
The petitioners have filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 ( for short "the Code") for quashing Criminal Complaint No.50/1/9 dated 17.1.2009 (Annexure P-8) for offence punishable under Sections 420 and 120-B of the Indian Penal Code, 1860 (for short "IPC") and order dated 2.8.2011 (Annexure P-9) passed by Judicial Magistrate Ist Class, Phillaur summoning the petitioners to face trial as well as proceedings emanating therefrom.
Counsel for the petitioners contends that complainant Joginder Kaur Sangha (respondent herein) and Balbir Singh, petitioner No. 1 are Saini Paramjit Kaur 2013.10.29 10:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 37539 of 2011 -2- British citizens, got married in UK on 24.9.1988 and two children were born out of the wedlock. During their stay in Birmingham (UK), differences arose between the husband and wife and a divorce petition was filed by Joginder Kaur Sangha and during pendency of the divorce proceedings, the matter was amicably settled and decree of divorce was passed on 9.5.2005, finalized on 8.7.2005 (Annexure P-1). It is further submitted that on 4.10.2005, District Judge Owen of the Birmingham County Court issued a consent order outlining the final splitting of the assets, a copy of which is Annexure P-2. As per the aforesaid consent order, it was ordered that Balbir Singh petitioner ( respondent therein) has transferred to Joginder Kaur Sangha respondent (petitioner therein) his legal and equitable interest in the joint house at Kishan Nagar, Nakodar, Jalandhar, Punjab, India and in 15 acres of land at Nawa Pind, Nakodar, District Jalandhar, Punjab, India. Joginder Kaur Sangha complainant filed an application/affidavit on 21.2.2006 in the Birlingham County Court for making the order of District Judge Owen dated 4.10.2005 to be null and void. Notice of the application was issued to petitioner Balbir Singh Sangha and on his consent, District Judge, Sheldrake vide order dated 10.3.2006 set aside order dated 4.10.2005 passed by the District Judge Owen and a final settlement between the parties was concluded and on 20.2.2007, District Judge Dowding made final settlement vide order dated 20.2.2007(Annexure P-3). It is argued with vehemence that as order dated 4.10.2005 transferring legal and equitable interest in the property in dispute by Balbir Singh Sangha petitioner in favour of Joginder Kaur Sangha was set aside on the request of the complainant and a fresh consent order was passed in regard to distribution of assets between petitioner No. 1 and complainant Joginder Saini Paramjit Kaur 2013.10.29 10:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 37539 of 2011 -3- Kaur Sangha and in the subsequent consent order, the complaint has not been given rights in the property in dispute, the criminal proceedings initiated by the complainant through her attorney by filing private complaint under Sections 420 and 120-B IPC are nothing but an abuse and misuse of process of law and thus liable to be quashed.
Another submission made by counsel is that the complainant lodged an FIR on the same allegations but after investigation, the FIR was cancelled and subsequent thereto Gurbax Singh attorney of Joginder Kaur Sangha filed the complaint in which the petitioners have been summoned as accused to face trial.
Counsel for the contesting respondent has not disputed the facts narrated by counsel for the petitioners. However, it is submitted that the property which was transferred to the complainant as per consent order dated 4.10.2005 was alienated by petitioner No. 1 in favour of his brother Balwinder Singh petitioner No. 3 in January 2006 when the said consent order was subsisting and binding upon the parties. He has argued with vehemence that the petitioners cannot be absolved of their criminal liability in view of subsequent developments or passing of a fresh consent order dated 20.2. 2007.
I have heard counsel for the parties and perused the records. Indisputably, legal and equitable interest in the property in dispute was bestowed upon the complainant vide consent order passed on 4.10.2005. There is no denial that on 4.1.2006, petitioner No. 1 executed a sale deed in regard to that property in favour of petitioner No. 3. The consent order dated 4.10.2005 was later set aside while accepting the request of the complainant and a fresh consent order dated 20.2.2007 was Saini Paramjit Kaur 2013.10.29 10:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 37539 of 2011 -4- made by the District Judge, Dowding. In view of the fresh consent order dated 20.2.2007, the complainant lost her rights transferred in her favour in regard to property in dispute vide consent order dated 4.10.2005. As the complainant was no longer owner of the said property at the time of filing of criminal complaint, therefore, there is no question of wrongful loss to the complainant by execution of sale deed by petitioner No. 1 in favour of petitioner No. 3. I find force in the contentions of the petitioners that the criminal proceedings are nothing but an abuse and misuse of process of law.
Balbir Singh Sangha petitioner No. 1 is the owner of the property in dispute and he agreed to transfer the same in favour of his wife in view of settlement vide consent order dated 4.10.2005 passed by the Court in Birlingham. There is nothing on record to suggest that any of the petitioners made any dishonest representation to the complainant inducing her to deliver any property or to do or omit to do something which she otherwise would not do or omit if she was not so deceived. If Balbir Singh Sangha had alienated the property in question without having any rights therein, the wrongful loss would be caused to the vendee and not to the owner i.e. the complainant who claimed ownership on the basis of consent order dated 4.10.2005. In this context, reference can be made to the judgment of Hon'ble the Supreme Court of India in Md. Ibrahim and others vs. State of Bihar and another 2009(4)RCR (Criminal) 369.
For the reasons recorded hereinabove, I am of the considered opinion that it would be unfair to subject the petitioners to rigmarole of criminal proceedings. As a result, I deem it appropriate to quash Criminal Complaint No.50/1/9 dated 17.1.2009 (Annexure P-8) and order dated Saini Paramjit Kaur 2013.10.29 10:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 37539 of 2011 -5- 2.8.2011 (Annexure P-9) passed by Judicial Magistrate Ist Class, Phillaur summoning the petitioners to face trial.
Ordered accordingly.
( Rekha Mittal ) Judge 11.10.2013 paramjit Saini Paramjit Kaur 2013.10.29 10:13 I attest to the accuracy and integrity of this document Chandigarh