Punjab-Haryana High Court
Sohan Lal And Others vs State Of Haryana And Another on 5 August, 2011
Author: Sabina
Bench: Sabina
CRM No.M-65463 of 2006 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 5.8.2011
Criminal Misc. No.M-65463 of 2006 (O&M)
Sohan Lal and others ......Petitioners
Versus
State of Haryana and another .......Respondents
Criminal Misc. No.M-67117 of 2006 (O&M)
Prem Chand and others ......Petitioners
Versus
State of Haryana and another .......Respondents
Criminal Misc. No.M-27233 of 2006 (O&M)
Fakir Chand ......Petitioner
Versus
State of Haryana and another .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Pawan Kumar , Sr. Advocate with
Mr.Anshuman Mandhar, Advocate and
Mr.Mahavir Sandhu, Advocate,
for the petitioners.
Mr.Amandeep Singh, AAG, Haryana.
Mr.C.B.Goel, Advocate,
for the complainant.
****
CRM No.M-65463 of 2006 (O&M) 2
SABINA, J.
This order will dispose of the above mentioned petitions as the petitioners have sought the quashing of the same FIR No.82 dated 18.3.2006 under Sections 420/ 467/ 468/ 471/ 120-B/ 452/ 323/ 506 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Mullana, District Ambala and all the subsequent proceedings arising therefrom.
Complainant Waryam Singh lodged the FIR. The contents of the FIR read as under:-
"That the complainant is the resident of above mentioned address. 2. That the accused No. 1 to 32 i.e. namely Joginder Singh, Nawab Singh, Shish Pal, Jai Bhagwan Jai Pal sons of Shri Gurmail Singh, Prem Singh, Roop Chand both sons of Anant Ram, Jai Prakash son of Sh. Puran Singh, Pawan Kumar, Satbir, Sandeep sons of Shri Kehar Singh, Jagir Singh son of Sh. Budhu Ram, Sahab Singh son of Shri sunder, Seo Pal son of Sh. Sunder, Ram Kishan son of Shri Chabila Ram @ Chamela Ram, Smt. Janak Dulari widow of Sh. Kali Ram, Mani Ram son of Shri Lalla Ram, Gurmeet Singh, Sarbjit singh, Jagdish Singh son of Sh. Birbhan Singh, Amro Devi widow of Sh. Birbhan, Jai Pal, Jarnail sons of Sh. Bishna Ram, Dharam Pal, Mohan Lal, Jai Kishan, Sohan Lal sons of Sh. Mihan Singh, Rai Singh, Ravinder Singh sons of Sh. Mukhtiara, Ram Pal Singh son of Sh. Randhir Singh, Raj Kumar son of Shri Ajit Singh, Faqir Chand son of Sh. Sunder, all residents of village Nurhad, Tehsil, Barara, District CRM No.M-65463 of 2006 (O&M) 3 Ambala had given offer in the year 1990 to the complainant for the sale of their land measuring one hundred and three acre situated in village Nurhad in Khewat No. 164 out of total land measuring 2842 Kanals 5 Marlas (as the accused persons are co-owners along with other villagers in the shamlat (land) as per the offer given by the accused persons, the complainant along with Joginder Singh son of Shri Pritam Singh resident of Shahbad, Distt. Kurukshetra were ready to purchase the land measuring hundred and three acre of the accused persons for the total sale consideration of ` 26 lakhs in the year 1990 and 1995 and the complainant took the possession of the land measuring one hundred three acre after making full and final payments to the accused persons for the total sale consideration ( photo copy of the agreement and receipts qua full payment received by the accused persons are enclosed herewith) and the complainant along with Surinder Bakashi are still in possession of the above said land but due to litigation regarding the above said land, pending before Hon'ble High Court of Punjab and Haryana, the sale deed could not be executed in favour of the complainant and regarding the case pending before Hon'ble High Court it was settled between the parties that when the case will be decided then they will execute the sale deed in favour of the complainant. 3. That after the decision of the case pending before the Court of Hon'ble Punjab and Haryana CRM No.M-65463 of 2006 (O&M) 4 High Court regarding the above said land, the complainant contacted the accused persons to execute the sale deed in their favour but the above said accused persons were went to putting off the complainant with one excuse or the other and now the complainant came to know that the above said accused persons namely Joginder Singh, Nawab Singh, Shish Pal, Jai Bhagwan, Jai Pal both sons of Shri Gurmail Singh, Prem Singh, Roop Chand both sons of Anant Ram, Jai Prakash son of Sh. Puran Singh, Pawan Kumar, Satbir, Sandeep son of Shri Kehar Singh, Jagir Singh son of Sh. Budhu Ram, Sahab Singh son of Shri Sunder, Seo Pal Singh son of Sh. Sunder, Ram Kishan son of Shri Chabila Ram @ Chamela Ram, Smt. Janak Dulari wido of Sh. Kali Ram, Mani Ram son of Sh. Lalla Ram, Gurmeet Singh, Sarbjit Singh, Jagdish Singh sons of Sh. Birbhan Singh, Amro Devi widow of Sh. Bhirbhan, Jai Pal, Jarnail sons of Sh. Bishan Ram, Dharam Pal, Mohan Lal, Jai Krishan, Sohan Lal sons of Sh. Mihan Singh, Rai Singh, Ravinder sons of Sh. Mukhtiara, Ram Pal Singh son of Sh. Sunder have again entered into an agreement of the above land with one Shakuntla daughter of Sh. Hari Chand son of Shri Chotu Ram, resident of Housing Board Complex, Sector- 14, Panchkula vide different agreement to sell dated 21.7.2005 (Photo copies of the agreement are enclosed herewith) and the accused persons played a fraud with the complainant after hatching conspiracy with accused CRM No.M-65463 of 2006 (O&M) 5 Shakuntla. 4. That the complainant is in possession of the land since 1990 as owner and are cultivating the land as assured by the accused persons that they will got executed the sale deed in favour of them after decision of the case. 5. That the accused persons also got executed power of attorney and Wills in favour of the complainant in the year 1990 and 1995 after receiving the full and final cost of the land of that time. The complainant got entered in the year 2005 on the revenue record qua agreement, Will and power of attorney in his favour executed by accused persons, but the accused Naresh Kumar Patwari Nurhad hatched conspiracy with the accused and issued a Fard in which Will, Power of Attorney and Agreement were not mentioned. 6. That the accused Ram Pal who is a Namberdar of the village Nurhad who is the witness of the Agreement executed in favour of the complainant knowingly again he become witness of the agreement executed between accused persons concealing the facts that this land was already purchased by the complainant.
7. That on 18.2.2006 the accused Sat Pal and Mahinder Singh forcibly entered in the land of the complainant with deadly weapons armed with pistol and gandasi and asked the servant Babbu and Jagdish Sharma that this land is purchased by Shakuntla and they are the musclemen of Shakuntla and directed them to leave the possession of the land and shown the agreement executed between the accused persons, when Babbu and Jagdish Sharma CRM No.M-65463 of 2006 (O&M) 6 raised a protest against the accused persons that complainant along with Joginder Singh and Surinder Bakshi are the real owner as they had purchased the land in the year 1990 and since then they are in possession of the land and since then they are cultivating the land, then the accused Sat Pal fired with his pistol in the air and threatened the servants that it can hit you in case if you not leave the possession of the land immediately and accused Mohinder Singh gave beatings to Babbu and Jagdish Sharma with fist blows and further threatened to murder them and face dire consequences, if they do not leave the possession of the land. 8. That the accused persons namely Joginder Singh, Nawab Singh, Shish Pal, Jai Bhagwan, Jai Pal both sons of Shri Gurmail Singh, Prem Singh, Roop Chand both sons of Anant Ram, Jai Parkash son of Sh. Puram Singh, Pawan Kumar, Satbir, Sandeep sons of Shri Kehar Singh, Jagir Singh son of Sh. Budhu Ram, Sahab Singh son of Sh. Sunder, Seo Pal Singh son of Sh. Sunder, Ram Krishan son of Sh. Chabila Ram @ Chamela Ram, Smt. Janak Dulari widow of Sh. Kali Ram, Mani Ram sons of Sh. Lalla Ram, Gurmeet Singh, Sarbjit Singh, Jagdish Singh son of Sh. Birbhan Singh, Amro Devi widow of Sh. Birbhan, Jai Pal, Jarnail sons of Sh. Bishna Ram, Dharam Pal, Mohan Lal, Jai Kishan, Sohan Lal son of Sh. Mihan Singh, Rai Singh, Ravinder son of Sh. Mukhtiara, Ram Pal Singh son of Sh. Randhir Singh, Raj Kumar son of Sh. Ajit Singh, Fakir CRM No.M-65463 of 2006 (O&M) 7 Chand son of Sh. Sunder have played a fraud with the complainant while hatching conspiracy with each other and while entering into second agreement to sell with Shakuntla of the above said land and the accused persons further threatened to murder the employees of the complainant after forcibly entering in the peaceful possession of the complainant and thus they have committed an offence punishable U/S 420/ 467/ 468/ 471/120-B/ 452/ 323/ 506 IPC. It is therefore, prayed that the above said complaint may kindly be forwarded to the SHO PS Mullana under Section 156(3) Cr. P. C. for Registration and investigation of the case."
Learned senior counsel for the petitioners has submitted that the offence in the present case was purely civil in nature. The alleged agreement to sell in question had been executed on 5.12.1990. Thereafter, the complainant filed civil suits seeking relief of specific performance against the petitioners in the year 2005. The said civil suits filed by the complainant have since been dismissed by the trial Court. The complainant has failed to establish his possession qua the suit land. The petitioners had filed suit for permanent injunction seeking protection of their possession and in the said suit the dis-possession of the petitioners had been stayed. The FIR in question was lodged just to put pressure on the petitioners. In support of his arguments, learned senior counsel has placed reliance on Nageshwar Prasad Singh @ Sinha vs. Narayan Singh and another, AIR 1999 Supreme Court, 1480, wherein, in para 3, it was held as under:-
CRM No.M-65463 of 2006 (O&M) 8
"the later part thereof illustrates that at the time when agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainants were cheated of the earnest money, which they passed to the appellant as part consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondents, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter in completing the bargain when admittedly the complaints have not performed their part in making full payment. The matter is therefore, before the Civil Court in this respect. The liability if any arising by the breach thereof is civil in nature and not criminal. We therefore allow this appeal, and set aside not only the impugned orders of the High Court but quash the proceedings too which are pending before the magistrate. The complainant-respondents shall pay compensatory costs to the appellant for this vexatious proceedings which we assess at Rs.10,000/- which the respondents are directed to pay to the appellants within six weeks from today."
Learned senior counsel has further placed reliance on Inder Mohan Goswami and another vs. State of uttaranchal and others 2007 (4) RCR (Criminal) 548, wherein, in para 42, it was held as under:-
"The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking CRM No.M-65463 of 2006 (O&M) 9 private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained."
Learned senior counsel has next placed reliance on Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandrojirao Angre 1988 (1) RCR (Criminal) 565, wherein, in para 7, it was held as under:-
The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be CRM No.M-65463 of 2006 (O&M) 10 served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
Learned counsel for the respondent-complainant has submitted that the criminal proceedings were liable to continue in a case where civil liability also arose. The vendors had taken entire sale consideration from the complainant and had handed over the possession of the suit property to the complainant. Now the petitioners were dishonestly trying to sell the land to other persons. Hence, FIR in question was not liable to be quashed.
After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed.
In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court 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 chennelised 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 CRM No.M-65463 of 2006 (O&M) 11 report or the complainant/respondent No.2, 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 FIR 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 no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR 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 Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR 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 CRM No.M-65463 of 2006 (O&M) 12 institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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.
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 FIR 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." In the present case, admittedly, the agreement to sell in question was entered into between the complainant and the accused party/ their ancestors on 5.12.1990. A perusal of the agreement to sell reveals that a sum of ` 20,000/- had been paid by Didar Singh and others-complainant party towards earnest money. The date for execution of the sale deed was fixed as 28.2.1992. Waryam Singh and Joginder Singh filed a suit bearing No.117-CS-RBT of 2005 against Fakir Chand, Sahib Singh and Sheo Pal for specific performance of agreement to sell in question. The said suit was CRM No.M-65463 of 2006 (O&M) 13 dismissed by the trial Court vide judgment and decree dated 13.10.2010. Certified copies of the judgment and decree have been placed on record. A perusal of the same reveals that while deciding issue No.1 as to whether the defendants were owner in possession of the suit property, the trial Court decided the said issue in favour of the defendants. While deciding issue No.3 as to whether the plaintiffs were entitled to relief of possession of the suit property by way of specific performance of agreement to sell dated 5.12.1990, the trial Court decided the said issue against the plaintiffs.
Similarly suit filed by Waryam Singh and Joginder Singh bearing No.441-CS of 2005 against Joginer Singh through his legal representatives, Nawan Singh and Shish Pal seeking relief of specific performance of agreement to sell in question was dismissed by the trial Court vide judgment and decree dated 27.7.2010. Photocopies of the said judgment and decree have been placed on record. In the said suit, plaintiffs had failed to prove their possession over the suit property.
Suit file by Waryam Singh and Joginder Singh bearing No.425-C5 of 2005 was dismissed vide judgment and decree dated 13.10.2010. A perusal of the photocopies of the same placed on record reveals that the suit filed by the plaintiffs for specific performance of agreement to sell dated 27.12.1990 and 16.3.1995 was dismissed. While deciding issue No.4, the civil Court held that the plaintiffs were not entitled for possession of the suit land. While deciding issues No.1 and 2 it was held by the civil Court that the plaintiffs had failed to prove that the defendants had entered into the agreement to sell in question.
CRM No.M-65463 of 2006 (O&M) 14
Thus, in the present case, the dispute between the parties appears to be purely civil in nature. The suits filed by the complainant seeking relief of specific performance of agreement to sell in question have been dismissed by the civil Court. It appears that the FIR in question had been lodged to put pressure on the petitioners for execution of the sale deed as the complainant had failed to seek civil remedy at the appropriate stage i.e. within the period of limitation. A perusal of the FIR reveals that it is a case of breach of contract and the same may not give rise to an offence of cheating. Dishonouring of commitment would give rise to civil liability To hold a person guilty of cheating, it is necessary to show that he has fraudulent or dishonest intention at the time of making of the promise. The said inference, however, cannot be drawn from the perusal of the FIR. Admittedly, civil suits had been filed by both the sides seeking appropriate reliefs. In the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.
Accordingly, the present petitions are allowed. FIR No.82 dated 18.3.2006 under Sections 420/ 467/ 468/ 471/ 120-B/ 452/ 323/ 506 IPC registered at Police Station Mullana, District Ambala and all the subsequent proceedings arising therefrom, qua the petitioners, are quashed.
(SABINA)
JUDGE
August 05 , 2011
anita