Punjab-Haryana High Court
Jaswant Singh vs State Of Punjab And Another on 17 November, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No. M-1256 of 2012. 1
In the High Court of Punjab and Haryana at
Chandigarh.
Criminal Misc. No. M-1256 of 2012.
Jaswant Singh Petitioner
Versus
State of Punjab and another
Respondents
Criminal Misc. No. M-5416 of 2012
Harmangal Singh and another Petitioner
Versus
State of Punjab and another
Respondents
Date of Decision: November 17 , 2012.
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI.
Present:- Mr. R.S.Bajaj, Advocate,
for the petitioner.
Mr. Jaspreet Singh,
Assistant Advocate General, Punjab,
for respondent No. 1.
Mr. Harsh Bunger, Advocate,
for respondent No. 2.
NARESH KUMAR SANGHI,J.
Criminal Miscellaneous Nos. 1256 and 5416 of Criminal Misc. No. M-1256 of 2012. 2 2012 are being disposed of by way of this common order since both the petitions have arisen out of FIR No. 237 dated 13.12.2011, registered at Police Station, Sadar, Jalandhar, District Jalandhar. In both the petitions identical prayer for quashing of the said FIR has been made by all the three petitioners.
Brief facts of the case, as culled out from the material available on record, are that respondent No. 2 Mukhtiar Singh son of Mehar Singh, resident of Samrari, Tehsil Phillaur, District Jalandhar, presented an application before the police to the effect that on 02.06.2010, the petitioners, namely, Jaswant Singh and Jagdish Kaur had executed an agreement to sell their land measuring 2 kanals 8 marlas, situated in village Jandiala, Tehsil Phillaur, District Jalandhar, at the rate of ` 75,00,000/- per acre to respondent No.2/complainant. Petitioner Jaswant Singh had received one cheque of `2,00,000/- and Harmangal Singh had received two cheques worth `6,00,000/-on behalf of his wife-Jagdish Kaur from respondent No.2/complainant as earnest money. As per agreement to sell (Annexure P-1), the sale deed was to be executed by 31.07.2010. With the consent of the petitioners, the date for execution of the Criminal Misc. No. M-1256 of 2012. 3 sale-deed was extended till 10.08.2010. On the so appointed/extended date, the respondent No.2-complainant kept on waiting for the petitioners throughout the day in the office of Joint Sub-Registrar, Nurmehal, for getting the sale deed executed but the petitioners did not turn up and as such respondent No.2-complainant got his presence marked before the Joint Sub-Registrar, Nurmehal, to establish his availability. Later, the petitioners-accused exchanged a portion of the land in dispute with some other persons and also executed an agreement to sell in favour of those persons. It was further alleged that the petitioners backed out from performing their part of the agreement to sell (Annexure P-1), rather exchanged the portion of the said land which was agreed to be sold to respondent No.2- complainant with some other persons. They also executed fresh agreement to sell the land in dispute in favour of other persons, therefore, the petitioners committed cheating with respondent No.2-complainant and also misappropriated the amount paid to them by respondent No.2-complainant.
On the basis of the afore-said averments, an inquiry was conducted by the police and after obtaining the opinion from the District Attorney (Legal), the impugned Criminal Misc. No. M-1256 of 2012. 4 FIR was registered.
The petitioners have prayed for quashing of the FIR and the consequential proceedings arising therefrom by way of these petitions.
Learned counsel for the petitioners submitted that on the basis of wrong averments and incomplete facts, respondent No.2-complainant approached the police and got the case registered against the petitioners. He further submitted that even if the whole case of the prosecution is taken at its face value than also, the same do not disclose commission of any criminal offence and ingredients of Sections 406 and 420 of the Indian Penal Code are not fulfilled against the petitioners. He submitted that it was a simple case of an agreement between the two parties. When respondent No.2-complainant deliberately did not come forward to execute the sale deed on the appointed day only then after waiting for a long period, the petitioners alienated a part of the land, the subject-matter of agreement (Annexure P-1), to some other persons.
He further submitted that according to the averments of respondent No.2-complainant himself, there was no mala fide intention on the part of the petitioners Criminal Misc. No. M-1256 of 2012. 5 when the agreement to sell was executed, therefore, ab- initio intention of the petitioners to cheat respondent No.2- complainant was absolutely missing in the case in hand. He further submitted that from the contents of the FIR, the mischief of Section 406 of the Indian Penal Code was also not attracted as there was no averment in the FIR that respondent No.2-complainant ever demanded the money paid by him from the petitioners and they (petitioners) refused to return the same, therefore, the FIR and the consequential proceedings arising therefrom were liable to be quashed.
However, during the course of arguments, learned counsel contended that the petitioners were still ready either to return the amount allegedly received by them from respondent No.2-complainant or to execute the sale deed of the remaining portion of the land which was still in their possession, in favour of respondent No.2-complainant on the terms and conditions mentioned in the agreement (Annexure P-1). To buttress his arguments, he has placed reliance on the following judgments (1)Nageshwar Prasad Singh alias Sinha Versus Narayan Singh and another 1998 Criminal Misc. No. M-1256 of 2012. 6 SCC (Cri) 1378;
(2) Murari Lal Gupta Versus Gopi Singh, 2006 (2) SCC (Cri) 430;
(3)Ram Biraji Devi and anr. Versus Umesh Kumar Singh and anr.,;
(4)Arun Kumar and another Versus State of Punjab and another, 2006 (3) R.C.R. (Criminal) 793;
(5)Inder Mohan Goswami & Another Versus State of Uttranchal & Other, 2007 (4) R.C.R. (Criminal) 548;
(6)B. Suresh Yadav Veus Sharifa Bee & Anr, 2007 (4) R.C.R. (Criminal) 870;
(7) State of Maharashtra Versus Sayed
Mohammed Masood & Anr, 2010 (1) R.C.R.
(Criminal) 177; and
(8)Piara Singh Versus State of Haryana and another, 2011(2) R.C.R. (Criminal) 416. On the other hand, learned counsel for the respondents submitted that the petitioners intentionally did not attend the office of the Joint Sub-Registrar, Nurmehal, on the appointed day and, thereafter, alienated a portion of Criminal Misc. No. M-1256 of 2012. 7 the land, subject matter of agreement to sell (Annexure P-
1), and usurped the amount paid by respondent No.2- complainant,therefore, a prima facie case for proceeding against the petitioners was made out and as such both the petitions were liable to be dismissed. In support of his contentions, reliance has been placed on the following judgments:-
(1)State of Karnataka Versus M.Devendrappa, 2002 (1) R.C.R. (Criminal) 480; (2)State of Andhra Pradesh Versus Goloconda Linga Swamy and another, 2004(3) R.C.R. (Criminal) 831;
(3)Central Bureau of Investigation Versus K.M.Sharan, 2008 (4) SCC 471;
(4)Lakhwant Singh Versus Jasbir Singh and Ors, 2008(4) R.C.R. (Criminal) 545; and (5) Som Mittal Versus Government of Karnataka, 2008 (2) R.C.R.(Cri) 92;
I have heard learned counsel for the parties and perused the material available on record.
In Nageshwar Prasad Singh's case (supra), it was held that liability arisen out of breach of contract is civil Criminal Misc. No. M-1256 of 2012. 8 in nature and not criminal.
In Piara Singh's case (supra), this court held that the accused executed an agreement to sell his land to complainant and fixed a date for sale but subsequently sold his land to someone else after one year and three months of the date fixed for execution of the sale deed. The accused were prosecuted for the offence under Section 420 of the Indian Penal Code. The FIR was quashed since no fraudulent dishonest intention on the part of the accused was made out.
In Sayed Mohammed Masood's case (supra), the Hon'ble Supreme Court held that simple breach of contract or a case involving pure civil dispute would not attract the penal provisions enshrined in Sections 406 and 420 of the Indian Penal Code.
In B.Suresh Yadav's case (supra), the Hon'ble Supreme Court held that criminal proceedings were not a short-cut of other remedies available in law.
In Inder Mohan's case (supra), it was held by the Hon'ble Supreme Court that an agreement to sell land was executed between accused and complainant and in consequence thereof accused received earnest money. The Criminal Misc. No. M-1256 of 2012. 9 complainant failed to pay balance amount despite notice. Accused cancelled the sale agreement under notice to the complaint and thereafter sold a part of land to another party. Dispute was held to be civil in nature and the criminal proceedings were quashed while further holding that in business circles there was tendency to convert purely simple disputes into criminal cases because civil remedies are time consuming.
In Rama Biraji Devi's case (supra), the accused by oral agreement agreed to sell a plot for `4,00,000/- and received advance payment of `80,000/- but refused to execute written agreement. It was held to be a civil liability and the criminal proceedings were quashed.
In Arun Kumar's case (supra), the accused entered into an agreement to sell his land to the complainant and received advance of `6,00,000/-, but sold the land to some other person. The FIR was quashed by this court holding that the complainant had remedy of filing a civil suit for specific performance.
In the cases of Goloconda and Lakhwant Singh (supra), the Hon'ble Apex court held that the allegations of mala fide against the informant are of no Criminal Misc. No. M-1256 of 2012. 10 consequence and cannot by itself be the basis for quashing the proceedings.
In Som Mittal and M. Devendrappa's cases (supra), it was held that power under Section 482 of the Code of Criminal Procedure should be exercised sparingly, with circumspection and in rarest of rare cases.
In K.M.Sharan's case (supra), the Hon'ble Apex Court held that the High Court should not enter into an inquiry as to whether the allegations in the FIR and the charge sheet were correct and reliable or not.
It is undisputed fact that on 02.06.2010 the petitioners had executed an agreement to sell in favour of respondent No.2/complainant regarding their land measuring 2 kanals 8 marlas situated in village Jandiala, Tehsil Phillaur, District Jalandhar, at the rate of ` 75,00,000/- per acre. Petitioner Jaswant Singh had received one cheque of `2,00,000/- and Harmangal Singh had received two cheques worth `6,00,000/- from respondent No.2/complainant as earnest money. As per the agreement to sell (Annexure P-1), originally the sale deed was to be executed by 31.07.2010 but with the consent of the petitioners, the date for execution of the agreement to Criminal Misc. No. M-1256 of 2012. 11 sell was extended till 10.08.2010. When the petitioners did not turn up in the office of Joint Sub-Registrar, Nurmehal, for getting the sale deed executed throughout the appointed day, respondent No.2-complainant got his presence marked before the Joint Sub Registrar, Nurmehal, to establish his availability. Later, the petitioner-accused exchanged a portion of the land in dispute with some other persons and also executed an agreement to sell in favour of those persons. It was further alleged that the petitioners not only backed out from the agreement to sell executed in favour of the respondent No.2-complainant, they exchanged a portion of the land in question with some other persons and also executed a fresh agreement to sell in favour of other persons.
From the above facts, it is very much clear that the petitioners had no ab initio intention to commit cheating with respondent No.2-complainant, otherwise, they would not have extended the date for execution of the sale deed from 31.07.2010 to 10.08. 2010. It is a simple case of breach of contract only which gives rise to a civil liability, if any. The date, as per the FIR, for execution of the sale deed was 10.08.2010 while the FIR was lodged on Criminal Misc. No. M-1256 of 2012. 12 13.10.2011, i.e. after a delay of one year and approximately four months without any explanation. Respondent No.2- complainant cannot be permitted to settle his civil scores under the garb of the present FIR. The pendency of the FIR and the consequential proceedings arising thereform are sheer abuse of the process of law. The Hon'ble Apex Court in Nageshwar Prasad Singh's case (supra), specifically held that the liability arisen out of breach of a contract is civil in nature and not criminal.
During the course of arguments of the present petitions, learned counsel for the parties made strenuous efforts to get the matter settled amongst the private parties. The petitioners stated that they were ready to return the amount received from respondent No.2- complainant or to execute a sale deed of the portion of the land still in their possession in his favour but that offer was not accepted by respondent No.2-complainant.
Keeping in view of the totality of the circumstances of the case and the law enunciated by the Hon'ble Supreme Court, discussed above, the present petitions are allowed and resultantly, the FIR bearing No. 237, dated 13.12.2011, under Sections 406, 420 and 120-B, Criminal Misc. No. M-1256 of 2012. 13 IPC, registered at Police Station, Sadar, Jalandhar, District Jalandhar, and the consequential proceedings emanating therefrom are hereby quashed.
(NARESH KUMAR SANGHI)
JUDGE
November 17 , 2012.
Anoop