Punjab-Haryana High Court
Sandip Somany vs State Of Haryana And Anr on 23 February, 2016
Author: Kuldip Singh
Bench: Kuldip Singh
CRM-M No.8431 of 2014 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRM-M No.8431 of 2014 (O&M)
Date of Decision: February 23, 2016
Sandip Somany .... Petitioner
vs.
State of Haryana and another .... Respondents
2. CRM-M No.8432 of 2014 (O&M)
Date of Decision: February 23, 2016
Rajendra Kumar Somany .... Petitioner
vs.
State of Haryana and another .... Respondents
3. CRM-M No.37933 of 2014 (O&M)
Date of Decision: February 23, 2016
Ram Niwas Jindal .... Petitioner
vs.
State of Haryana and another .... Respondents
CORAM: HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Manav Gupta, Advocate for the petitioner
in CRM-M Nos.8431 and 8432 of 2014.
Mr. A.P.S. Deol, Sr. Advocate with
Mr. Samrat Malik, Advocate for the petitioner
in CRM-M No.37933 of 2014.
Mr. M.S. Sidhu, Addl. A.G., Haryana.
Mr. J.S. Ghuman, Advocate for respondent No.2.
1.Whether Reporters of Local Newspapers may be allowed to see the
judgment? Yes
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
SARITA RANI
2016.02.24 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh
CRM-M No.8431 of 2014 (O&M) -2-
Kuldip Singh J.
By this single judgment of mine, I shall dispose of three
criminal petitions i.e. CRM-M Nos.8431 of 2014 filed by Sandip
Somany, 8432 of 2014 filed by Rajendra Kumar Somany and 37933
of 2014 filed by Ram Niwas Jindal, arisen out of the same FIR
No.263, dated 14.03.2009, under Sections 406, 420, 465, 467, 468,
471 and 120-B IPC, registered at Police Station Karnal Civil Lines,
District Karnal. All the aforesaid three petitioners by filing different
petitions have sought quashing of FIR in question along with
consequential proceedings arising therefrom qua them.
It is stated that petitioner Sandip Somany along with his
father Rajendra Kumar Somany had jointly owned a portion of 43
kanal, 13 marla land, situated in revenue estate of Village Uchana,
Tehsil and District Karnal. Through a General Power of Attorney
dated 02.07.2008 (registered at Jalandhar on 01.09.2008), they
authorized Ram Niwas Jindal to deal with the said land for the
purpose of sale and execution of the necessary documents and
consequence thereof.
Shri Ram Niwas Jindal acting as GPA entered into an
agreement to sell dated 14.07.2008 with Mr. Vinod Saini for the
purpose of selling the said land at an aggregate price of `1.25 crore
per acre and had received earnest money to the tune of `70 lac.
Mr. Vinod Saini made another payment of `50 lac by way of cheques
dated 06.10.2008 towards the earnest money to be paid in
SARITA RANI
2016.02.24 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh
CRM-M No.8431 of 2014 (O&M) -3-
furtherance of the said agreement to sell. The cheque was issued by
M/s UFIPL Infrastructure Ltd. i.e. respondent No.2 in favour of Ram
Niwas Jindal at the behest of Vinod Saini.
On the date fixed for final payment of the entire amount,
Mr. Vinod Saini expressed his inability to do so and sought for
extension of time for making the said payment. Mr. Ram Niwas Jindal
acceded to the said request of Mr. Vinod Saini on moral grounds and
granted more time for making the said payment till 10.02.2009. On
10.02.2009, Mr. Vinod Saini did not make the balance payment as
promised and also did not come to the office of Tehsildar, Karnal
Courts till 4.00 p.m. for the purpose of executing the sale deed.
However, Mr. Ram Niwas Jindal duly appeared before the Tehsildar
and filed an affidavit and got his presence marked before the
Executive Magistrate, Karnal. Thereafter, Ram Niwas Jindal sent a
legal notice dated 12.02.2009 to Mr. Vinod Saini for rescinding the
said agreement to sell due to non-fulfillment of the agreed terms and
payment of the final amount by 10.02.2009. Therefore, Mr. Vinod
Saini was left with no right, title or interest in any manner over the
said land and Ram Niwas Jindal was fully entitled to deal with the
said land.
Thus, Ram Niwas Jindal acting in furtherance of GPA sold
the land to Golden Moments Pvt. Ltd., vide registered sale deed
dated 24.06.2011. Sandip Somany and his father Rajendra Kumar
Somany had received the entire amount of consideration.
SARITA RANI
2016.02.24 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh
CRM-M No.8431 of 2014 (O&M) -4-
It transpired that Mr. Vinod Saini after entering into an
agreement with Ram Niwas Jindal, further entered into an agreement
to sell dated 10.10.2008 for the purpose of selling the said land to
M/s UFIPL Infrastructure Ltd.-respondent No2 at an aggregate price
of `1.97 crore per acre and had received an amount of `4.75 crore
as earnest money. Mr. Vinod Saini misrepresented M/s UFIPL
Infrastructure Ltd. that he is GPA holder of Mr. Ram Niwas Jindal for
selling the said land. In fact, there was no General Power of Attorney
in favour of Mr. Vinod Saini on the said date.
On finding out the aforesaid position, M/s UFIPL
Infrastructure Ltd. registered the FIR in question against Mr. Vinod
Saini, Vishal Gupta and Mrs. Bhavana Gupta. Vishal Gupta was the
Director of the complainant-Company and stated to have hatched a
conspiracy with his wife Bhavana Gupta and his employee Vinod
Saini.
It was alleged in the complaint that modus operandi
adopted by Mr. Vishal Gupta was that he had first entered into an
agreement to sell dated 14.07.2008 with Mr. Ram Niwas Jindal
through his employee Mr. Vinod Saini and had agreed to purchase
the said land for an aggregate price of `1.25 crore per acre and
thereafter, acting as the Director of the complainant-company had
entered into an agreement to sell for the said land with Mr. Vinod
Saini for an aggregate price of `1.97 crore per acre and thereby
cheated, cheating the complainant-company to the tune of `72 lac
per acre.
SARITA RANI
2016.02.24 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh
CRM-M No.8431 of 2014 (O&M) -5-
The Sub Registrar, Jalandhar had filed verification report
dated 13.08.2010 that GPA dated 02.07.2008 is a genuine document.
A civil suit was filed by respondent No.2 for specific performance or
in alternative for refund of `4.75 crore. It is stated that Sandip
Somany as well as respondent No.2 entered into a Memorandum of
Understanding (in short 'MOU'), dated 17.11.2013, whereby Sandip
Somany undertook to pay the amount of `10 crore in full and final
settlement of all the disputes. Accordingly, the said amount was paid
and the civil suit was withdrawn. The said fact was mentioned in the
order dated 10.01.2014 passed by Hon'ble the Supreme Court
granting anticipatory bail in present FIR. It is also stated that as per
terms of MOU, the complaints were to be withdrawn and the FIR was
to be quashed.
In reply, respondent No.2 took the plea that MOU was for
withdrawal of the civil suit but not for exonerating the petitioners from
the criminal liabilities in the FIR in question.
It is alleged that the petitioner connived for impersonation
and further drawn financial benefits as indicated in the report under
Section 173 Cr.P.C. The offences are non-compoundable. Merely
because Hon'ble the Apex Court granted the anticipatory bail to the
petitioners that does not mean that the FIR is to be quashed qua the
petitioners.
I have heard learned counsel for the parties and have
also carefully gone through the case file.
SARITA RANI
2016.02.24 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh
CRM-M No.8431 of 2014 (O&M) -6-
Admittedly, in the FIR (Annexure P-1), the allegations
were levelled against Vishal Gupta, Bhavana Gupta, Mr.Vinod Saini
and Ram Niwas Jindal. Later on, the names of Sandip Somany,
Rajendra Kumar Somany and Ram Niwas Jindal were included in the
supplementary challan. Petitioners seek quashing of FIR in question
on the basis of MOU.
The copy of admitted MOU dated 17.11.2013 placed on
file shows that it was entered into Rajendra Kumar Somany and
Sandip Somany on the one hand and respondent No.2 on the other
hand. There was specific mention of the complaints dated 15.07.2011
and 25.07.2011 against the first party and FIR in question registered
against Vishal Gupta, Bhavana Gupta, Vinod Saini and Ram Niwas
Jindal.
The relevant extract from the said MOU is as under:
"Whereas the Parties to the MOU have agreed to
settle the dispute/differences and the Party of the
SECOND PART [UFIPL] since his grievances have
been fully settled/satisfied has agreed to withdrawn
the Complaints filed on 15.07.2011 and 25.07.2011
and quash the proceedings arising from FIR
No.263 of 2009 against the Party of the FIRST
PART (SOMANYS).
----
4. The FIRST PART [SOMANYS] may file a Petition before the Hon'ble High Court of Punjab & Haryana at Chandigarh for the purpose of withdrawing the Complaints filed on 15.07.2011 and 25.07.2011 and for quashing the proceedings SARITA RANI 2016.02.24 10:07 I attest to the accuracy and authenticity of this document Chandigarh CRM-M No.8431 of 2014 (O&M) -7- arising from FIR No.263 of 2009 against them since the SECOND PART (UFIPL) is fully satisfied."
Undisputedly, as per copy of the cheques, two cheques to the tune of `2.50 crore each were paid on 17.11.2013. In this way, `5 crore was paid on 17.11.2013. Another sum of `5 crore was paid through two cheques amounting to `2.50 crore each on 19.11.2013. Copies of which are on file.
However, payment of `10 crore is not disputed by respondent No.2-complainant.
Plea of learned counsel for petitioner is that after receiving the entire amount of consideration of `10 crore, now respondent No.2-complainant has backed out to give consent for quashing of the complaints as well as FIR in question.
Learned counsel for the petitioner has referred to the order dated 10.01.2011 passed by Hon'ble the Apex Court, in which while granting the anticipatory bail to the petitioners, the fact regarding the payment of `10 crore by the petitioners to the complainant was taken into consideration.
Undisputedly, the civil suit for the specific performance has already been withdrawn.
Learned counsel for the petitioner has referred to the following authorities
1. "Ruchi Aggarwal vs Amit Kumar Aggarwal and others", 2005(3) Supreme Court Cases 299. SARITA RANI 2016.02.24 10:07 I attest to the accuracy and authenticity of this document Chandigarh CRM-M No.8431 of 2014 (O&M) -8-
2. "Mohd. Shamim and others vs Nahid Begum (Smt) and another", 2005(3) Supreme Court Cases 302.
3. "Rajesh and others vs State and another", I (2008) DMC 442.
4. "V.N. Gupta and others vs State and another"
2013(2) JCC 1079.
5. "Ashok Chawla vs State and another" 2013 (3) JCC 1741.
6. "Dr. Vimla vs Delhi Administration" AIR 1963 SC 1572.
7. "R. Kalyani vs Janak C. Mehta and others", (2009) 1 SCC 516.
8. "Dr. Aakash Deep Makkar and others vs Dr. Vanish and another", Manu/De/7626/2007. It is argued that once the agreement is acted upon, the complainant cannot wriggle out of the same.
In Ruchi Aggarwal's case (supra), the Hon'ble Apex Court in the similar circumstances observed as under:
"5. In the compromise petition, referred to herinabove, both the parties had agreed to withdraw all the civil and criminal case filed by each against the other. It is pursuant to this compromise, the above divorce as sought for by the appellant was granted by the husband and pursuant to the said compromise deed the appellant also withdrew Criminal Case No.63 of 2002 on the file of the Family Court, Nanital which was a complaint filed under Section 125 of the Criminal Procedure Code for maintenance. It is on the basis of the submission made on behalf of the appellant and on the basis of SARITA RANI 2016.02.24 10:07 I attest to the accuracy and authenticity of this document Chandigarh CRM-M No.8431 of 2014 (O&M) -9- the terms of compromise, the said case came to be dismissed. However, so far as the complaint under Sections 498-A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act is concerned, which is the subject-matter of this appeal, the appellant did not take any steps to withdraw the same. It is in those circumstances, a quashing petition was filed before the High Court which came to be partially allowed on the ground of the territorial jurisdiction, against the said order the appellant has preferred this appeal.
----- Therefore, we are of the opinion that the appellant having received the relief she wanted without consent on the basis of the terms of compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents."
Similarly, in Mohd. Shamim's case (supra) of similar nature, the Hon'ble Apex Court observed as under:
"12. In view of the fact that the settlement was arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge, we are of the opinion, the contention of the first respondent herein to the effect that she was not aware of the contents thereof and the said agreement as also the affidavits which were got signed by her by misrepresentation of facts must be rejected. In the facts and circumstances of this case, we have no doubt in our mind that the denial of execution of SARITA RANI 2016.02.24 10:07 I attest to the accuracy and authenticity of this document Chandigarh CRM-M No.8431 of 2014 (O&M) - 10 - the said deed of settlement is an afterthought on the part of respondent 1 herein.
16. In view of the conduct of the first respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the appellants, in our opinion, in this case also, would be an abuse of the process of the curt. Appellant 1, however, would be entitled to withdraw the sum of Rs.50,000 which has been deposited in the court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution direct that the impugned judgment be set aside. The first information report lodged against the appellants is quashed. The appeal is allowed. However, this order should not be treated as a precedent."
More or less the position is similar in the other authorities referred above. In the present case also, the complainant has been compensated by payment of `10 crore by petitioner Sandip Somany and his father Rajendra Kumar Somany. Ram Niwas Jindal was their authorized GPA.
In the MOU, which is, in fact, a compromise agreement between the parties, it was undertaken by respondent No.2- complainant to give consent for quashing of the FIR in question. However, now he is denying to have given the said consent by taking one or the other legal plea. The civil suit on the basis of said MOU has already been withdrawn.
As such, I am of the view that the present FIR is nothing but misuse of process of court and law qua the present petitioners. SARITA RANI 2016.02.24 10:07 I attest to the accuracy and authenticity of this document Chandigarh CRM-M No.8431 of 2014 (O&M) - 11 -
Accordingly, all the aforesaid three petitions are allowed and the FIR in question qua the present petitioners along with all the consequential proceedings arising therefrom stand quashed.
(KULDIP SINGH)
February 23, 2016 JUDGE
sarita
SARITA RANI
2016.02.24 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh