Punjab-Haryana High Court
Avinash Chawla vs Naresh Kumar on 6 May, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl. Misc. No. M-33292 of 2010 (O&M) & -1-
Crl. Misc. No. M-20108 of 2012 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
(1) Crl. Misc. No. M-33292 of 2010 (O&M)
Avinash Chawla ...Petitioner
Versus
Naresh Kumar ...Respondent
(2) Crl. Misc. No. M-20108 of 2012 (O&M)
Sunil Chawla ..Petitioner
Versus
State of Haryana and another ..Respondents
Date of decision: - 06.05.2013
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present: Mr. M.K. Dogra, Advocate, for the petitioner in 1st case.
Mr. Rakesh Verma, Advocate, for the petitioner in 2nd case.
Mr. Gourav Verma, Assistant Advocate General, Haryana
for the State in 2nd case.
Mr. Jagdeep Singh, Advocate
for Mr. Hari Om Attri, Advocate for the complainant.
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Mehinder Singh Sullar, J. (Oral)
As identical questions of law and facts are involved, therefore, I propose to dispose of the indicated petitions bearing CRM No. Crl. Misc. No. M-33292 of 2010 (O&M) & -2- Crl. Misc. No. M-20108 of 2012 (O&M) M-33292 of 2010 titled Avinash Chawla Vs. Naresh Kumar (for brevity "the 1st case) and CRM No. M-20108 of 2012 titled Sunil Chawla Vs. State of Haryana & another, (for short "the 2nd case"), filed by the different accused, arising out of the same impugned complaint (Annexure P-1), by virtue of this common judgment, in order to avoid the repetition.
2. The crux of the facts and material, culminating in the commencement, relevant for disposal of the instant petitions and emanating from the record is that Avinash Chawla, Shiv Kumar Chawla sons of Sham Das Chawla, Gulshan son of Jagan Nath Chawla and Sushil Kumar Chawla son of Baldev Chawla, claimed themselves to be the co-owner in land in question, situated in village Dungasara, District Guna (Madhya Pradesh). Petitioner-Avinash Chawla had contacted the complainant Naresh Kumar son of late Om Parkash Batra-respondent (for brevity 'the complainant'), and told that his family members wanted to sell their land. The complainant visited, selected and intended to purchase the indicated land. According to the complainant then the petitioner-accused Avinash Chawla had talked to remaining accused and also made the complainant to talk with his brothers on telephone Nos.093505-20522, 098686-59070 and 098140-50196 (Sunil Chawla-petitioner in 2nd case), before entering into a deal. Thereafter, all the petitioners-accused had told him on telephone that Avinash Chawla is their elder brother and all the family members wanted to sell the entire land. They have assured the complainant that whatever their elder brother will do, will be accepted to them and do not hesitate in making the payment. Their entire family shall Crl. Misc. No. M-33292 of 2010 (O&M) & -3- Crl. Misc. No. M-20108 of 2012 (O&M) give a power of attorney to their brother Avinash Chawla (petitioner in 1st case).
3. The case of the complainant further proceeds that thereafter he entered into an agreement to purchase the entire land, for a consideration amount of Rs.9,000/- per bigha and accused Avinash Chawla received, on behalf of all the accused, an amount of Rs.17,50,000/, vide cheque No. 940845, Rs.35,00,000/- in cash, Rs.9,00,000/- and Rs.20,13,000/- through cheques drawn on Punjab National Bank, in favour of accused Sunil Chawla (petitioner in 2nd case), in lieu of earnest money. In pursuance thereof, the accused have got registered the sale deed of only 55 Bigha of the land, delivered its vacant possession and promised to execute the sale deed of the remaining land.
4. Sequelly, the complainant claimed that in the month of June 2006 he came to know that the accused persons have entered into an agreement to sell the above-said land with some another third person. When the complainant made inquiries, it revealed that in fact the accused persons have executed and registered the sale deed, with regard to the same very land, in favour of some third party, in order to cheat and misappropriate the pointed amount of the complainant.
5. Levelling a variety of allegations and narrating the sequence of events, in detail, in the impugned complaint (Annexure P-1), in all, according to the complainant that the petitioners-accused have hatched a criminal conspiracy, to cheat him and received huge amount (more than Rs.81,63,000/-), in the manner depicted hereinabove. Instead of executing the sale deed of the entire land, the petitioners-accused have sold the same Crl. Misc. No. M-33292 of 2010 (O&M) & -4- Crl. Misc. No. M-20108 of 2012 (O&M) very land to some third party, in order to cheat him (complainant). In the background of these allegations, the complainant filed the criminal complaint (Annexure P-1) against the petitioners-accused, in the manner described hereinabove.
6. Taking into consideration the preliminary evidence, the trial Magistrate, summoned all the accused (including the petitioners), to face the trial, for the commission of offences punishable under Sections 420, 406, 467, 468, 471 & 506 read with Section 120-B IPC, by way of summoning order dated 06.11.2009 (Annexure P-2).
7. Instead of submitting to the jurisdiction of the trial Court, now the petitioners-accused have straightway jumped to prefer the present petition, to quash the impugned complaint (Annexure P-1) and summoning order (Annexure P-2), invoking the provisions of Section 482 Cr.P.C..
8. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant petitions in this context.
9. Ex facie, the arguments of learned counsel that the remaining accused, including Sunil Chawla (petitioner in 2nd case), have neither authorized Avinash Chawla to sell their land nor actually received any amount of earnest money and since the dispute is purely of a civil nature, so the impugned complaint (Annexure P-1) and summoning order (Annexure P-2) are liable to be set aside, are not only devoid of merit but misplaced as well.
Crl. Misc. No. M-33292 of 2010 (O&M) & -5- Crl. Misc. No. M-20108 of 2012 (O&M)
10. As is evident from the record that, very direct and serious allegations of hatching a criminal conspiracy, cheating and misappropriation of the amount of the complainant are assigned to the petitioners-accused. The argument of learned counsel that remaining accused did not authorize the petitioner Avinash Chawla to enter into an agreement to sell their land with the complainant, lacks merit. It has been specifically mentioned in the complaint that as soon as the complainant has selected the land, then accused Avinash Chawla talked to remaining accused Nos. 2 and 4, obtained their consent & also made the complainant to talk to his brother on telephone Nos.093505-20522, 098686-59070 and 098140-50196 (Sunil Chawla) before entering into a deal. They told the complainant on phone that Avinash Chander is their elder brother, all the family members wanted to sell the entire land and don't hesitate in making the payment, whatever their elder brother will do will be acceptable to them and their entire family shall give power of attorney to him. In pursuance thereof, the complainant has paid the huge amount of Rs.81,63,000/- to petitioner Avinash Chawla, on behalf of all the accused, in the manner described here-in-above. There are direct allegations against the accused that they have received the amount in question from the complainant and misappropriate the same.
11. Likewise, it has been specifically mentioned that the cheque of Rs.20,13,000/- drawn on Punjab National Bank was given to Sunil Chawla (petitioner in 2nd case). Neither any agreement nor other document is forthcoming on record on behalf of the petitioners-accused, despite repeated adjournments, to indicate remotely that petitioner Avinash Crl. Misc. No. M-33292 of 2010 (O&M) & -6- Crl. Misc. No. M-20108 of 2012 (O&M) Chawla has not entered into an agreement and received the impugned amount from the complainant on behalf of the accused (co-sharers). According to the complainant that instead of executing the sale deed in his favour, all the accused have fraudulently alienated their land in question to some third party, in order to defeat his rights.
12. Meaning thereby, the petitioners-accused had the intention to cheat & misappropriate the amount of the complainant from the very beginning. They have received a huge amount of Rs.81,63,000/-, in lieu of earnest money but did not execute the sale deed of the entire land in order to cheat and misappropriate the amount of the complainant, in the manner described hereinabove.
13. Similarly, the next contention of learned counsel that dispute is purely of a civil nature, again sans merit. It is not a matter of dispute that the jurisdiction of civil and criminal court is entirely different and distinct from each other. The matter of cheating and misappropriation as in the present case squarely falls within the domain of criminal Court and the order of civil court would not debar the complainant to prosecute the petitioners-accused, in this relevant context. This matter is no more res integra and is now well settled.
14. An identical legal question came to be decided by the Hon'ble Apex Court in cases M.S.Sheriff and another v. State of Madras and others 1954 AIR (SC) 397; Kamaladevi Agarwal v. State of West Bengal 2001 AIR (SC) 3846; K.G.Premshanker v. Inspector of Police and Anr. 2002 AIR (SC) 3372; Iqbal Singh Marwah & Anr. v. Meenakshi Crl. Misc. No. M-33292 of 2010 (O&M) & -7- Crl. Misc. No. M-20108 of 2012 (O&M) Marwah & Anr. 2005 AIR (SC) 2119 and Smt.Rumi Dhar v. State of West Bengal and another 2009(2) RCR (Criminal) 704.
15. Having interpreted the provisions of sections 300, 482 Cr.PC and sections 40 to 43 of the Evidence Act, it was ruled that "standard of proof required in two proceedings i.e. civil & criminal cases, is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other distinct matter, as both the cases have to be decided on the basis of the evidence adduced therein. Each case has to be decided on the basis of its own facts." It was also held that judgment of civil Court is not always a good ground to quash the criminal proceedings and the High Court should be slow in interfering with the proceedings at the initial stage merely on the ground of pendency of the civil suit.
16. Therefore, if the nature of accusations of criminal conspiracy, cheating, mis-appropriation of huge amount in question, material evidence, legal position and totality of the facts and circumstances of the case, as discussed hereinabove, are put together, then, to me, the conclusion is inescapable that there is an ample evidence on record to prosecute the petitioners.
17. Sequelly, the cosmetic contentions of learned counsel that the allegations levelled against the petitioners are vague & false and there is no cogent evidence on record against them, again lacks merit. The direct Crl. Misc. No. M-33292 of 2010 (O&M) & -8- Crl. Misc. No. M-20108 of 2012 (O&M) allegations of cheating and misappropriation are assigned to them. The stage of production of evidence has not yet reached in the main case. Moreover, what would be the effect of previous litigations, whether all the essential ingredients of cheating and misappropriation are complete or not and all other submissions, relatable to the appreciation of evidence (as now sought to be urged on their behalf), would be the moot points to be decided during the course of trial. If all such intricate questions, which require determination by the trial Court, after production of evidence by the parties, are to be decided by this Court, in the absence of any evidence in this respect, in the garb of petition under section 482 Cr.PC, then the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible.
18. Moreover, it is now well settled principle of law that the High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon'ble Supreme Court in case U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi and another (2009) 2 SCC 147.
19. Therefore, the Bench mark set out in the aforesaid judgments and essential ingredients for quashing the impugned complaint (Annexure Crl. Misc. No. M-33292 of 2010 (O&M) & -9- Crl. Misc. No. M-20108 of 2012 (O&M) P-1) and summoning order (Annexure P-2) at this initial stage are totally lacking in this case. Hence, the contrary arguments of the learned counsel for the petitioners "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances, as the ratio of law laid down in the indicated judgments "mutatis mutandis" is applicable to the facts of the present cases and is the complete answer to the problem in hand.
20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioners.
21. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main cases, as there is no merit, therefore, the instant petitions are hereby dismissed as such.
22. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main cases, as the same has been so recorded only for a limited purpose of deciding the present petitions under Section 482 Cr.P.C. and not otherwise.
May 06, 2013 (Mehinder Singh Sullar)
naresh.k Judge
Whether to be referred to reporter? Yes