Punjab-Haryana High Court
Dalip Kumar vs State Of Punjab And Another on 11 February, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
Criminal Misc. Nos.4505 of 2014, 14717 and 14718 of 2013
and
(1) Criminal Misc. No.M-12103 of 2012 (O&M)
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Date of decision:11.2.2014
Dalip Kumar
...Petitioner
v.
State of Punjab and another
...Respondents
....
(2) Criminal Misc. No.M-7631 of 2013
.....
Arjun Kumar and others
...Petitioners
v.
State of Punjab and another
...Respondents
....
Coram: Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. Kanwaljit Singh, Senior Advocate with Mr. Rahul Gupta,
Advocate for the petitioners.
Mr. K.S. Aulakh, Assistant Advocate General, Punjab
for the respondent-State.
Mr. D.K. Singal, Advocate for complainant-respondent No.2.
.....
Inderjit Singh, J.
Cr. Misc. No.4505 of 2014:
For the averments made in the criminal miscellaneous Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [2] application, the same is allowed and Annexure-P.10 attached with the application is taken on record subject to all just exceptions. Cr. Misc. No.14717 of 2013:
For the averments made in the criminal miscellaneous application, the same is allowed subject to all just exceptions. Cr. Misc. No.14718 of 2013:
For the reasons stated in the criminal miscellaneous application, the same is allowed subject to all just exceptions and offences under Sections 448 and 427 IPC are added in the head note and prayer clause of the present petition, as the said offences have been added later on in the challan and were not there in the original FIR. Cr. Misc. No.12103 of 2012 (O&M) and Cr. Misc. No.7631 of 2013:
This order will dispose of the above mentioned two criminal miscellaneous petitions i.e. Criminal Misc. No.M-12103 of 2012 filed by Dalip Kumar and Criminal Misc. No.M-7631 of 2013 filed by Arjun Kumar, Pawan Gupta and Deepak Kumar under Section 482 Cr.P.C. for quashing of FIR No.125 dated 4.6.2011 (Annexure-P.1) registered at Police Station Focal Point, Ludhiana for the offences under Sections 447, 511, 379 and 120-B IPC and (Sections 448 and 427 IPC, which were added later on in the challan) and all other subsequent proceedings arising therefrom. Both the petitions are being disposed of together as these arise out of the same FIR.
The facts are being taken from Criminal Misc. No.M-12103 of 2012. It is mainly stated in the petition that the FIR is totally misuse of Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [3] the criminal law and is totally based upon wrong facts and has been lodged with ulterior motives. The dispute in the present FIR is the possession of property bearing Municipal No.29-24, G.T. Road, Sherpur Chowk, Ludhiana. It is stated that petitioner Dalip Kumar is the employee of M/s L.R. Builders Private Limited (hereinafter referred to as `L.R. Builders') having Head Office at 8233, Rani Jhansi Road, near Filmistan Cinema, Delhi-11006 and the present FIR has been lodged by respondent No.2 of M/s Commando Securities (hereinafter referred to as `Commando Securities') which has been hired by M/s Green Star Buildcon Private Limited (hereinafter referred to as `Green Star'), who claims it to be owner in possession of the questioned property. It is further stated in the petition that neither Green Star nor Commando Securities have got any connection with the questioned property. In fact M/s Saini Motors (hereinafter referred to as `Saini Motors') was the absolute owner of the questioned property. The questioned property had been mortgaged with State Bank of India, Chandigarh against credit facilities availed by the said Saini Motors and original title deeds having already deposited and lying deposited with the Bank. The total mortgaged dues in respect of the suit property and as per settlement arrived with the bank stood at `15,25,45,877.02 as on 31.10.2004. The L.R. Builders had agreed to purchase the questioned property and develop the same as multiplex-cum-shopping mall.
Accordingly, a Memorandum of Understanding (MOU) dated 14.8.2006 was signed between the L.R. Builders and Saini Motors. Soon thereafter all the parties had signed and executed detailed Tripartite Agreement Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [4] dated 3.1.2007 (Annexure-P.3) and thereafter, General Power of Attorneys dated 23.1.2007 and 10.4.2007 and agreement to sell dated 16.7.2007. It was agreed that necessary approval shall be obtained from the Bank and the builders shall deposit the amount under the `No Lien Account' with the Bank. Present petitioner Dalip Kumar is the employee of L.R. Builders and in the second petition, petitioners No.1 and 2 are Directors of L.R. Builders. It is also stated that the complaint in the present FIR is nothing but an attempt made by Green Star in connivance with Saini Motors with the ulterior motives to cause vengeance on the accused-petitioners on account of already pending civil dispute relating to immovable properties. It is also stated in this petition that the disputes have arisen between the parties on account of wrong, unfair and dishonest intentions on the part of owners i.e. Saini Motors and said dispute resulted into the filing of the civil proceedings in the Courts at Ludhiana in the form of Section 9 petition under the Arbitration and Conciliation Act with the prayer for issuance of ad-interim injunction restraining the owners from making any sale, transfer or creating third party rights in the questioned property and also from dispossessing the builders from the questioned property. The relief against the Bank was also prayed to the tune that the Bank should be restrained from handing over and delivery of original title deeds to the owners etc. Replies have been filed on behalf of the respondent-State as well as by the private respondent and contested the petitions.
At the time of arguments, learned senior counsel for the Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [5] petitioners argued on the same points relying upon the MOU, Tripartite agreement etc. Learned senior counsel for the petitioners also contended that L.R. Builders is already in possession and Dalip Kumar is their employee. Learned senior counsel for the petitioners also contended that L.R. Builders have already paid `16 Crores as per MOU and Tripartite Agreement. Even in the agreement receipt of payment of `8 Crores has already been admitted. It is also argued that the entire amount of the Bank has already been paid. Learned senior counsel for the petitioners further contended that as per the FIR only attempt was made to trespass and to commit the theft but nothing has been stolen nor there is any other allegation. The possession is already with the L.R. Builders and the Directors of the Company though not challaned, but warrants against them have been sought. Green Star has no concern with the premises nor they have any right to put any security guards there. L.R. Builders are in possession.
He further argued that this FIR has been registered at the instance of Saini Motors with ulterior motives as arbitration proceedings and civil litigation are pending between them.
Learned Assistant Advocate General, Punjab appearing for the respondent-State and learned counsel for respondent No.2 contested these petitions and stated that commission of offence is made out in the FIR and the same is not liable to be quashed.
I have gone through the record and have heard learned senior counsel for the petitioners, learned Assistant Advocate General, Punjab Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [6] and learned counsel for respondent No.2.
The FIR in the present case has been got registered by respondent No.2 Paramjeet Singh, who is stated to have been working with the Commando Securities. It is as per FIR that Green Star has hired the security of their Company. Green Star is owner in possession of property in question. A perusal of the record shows that no document has been placed to show that Green Star is owner or in possession of the property. Similarly, no agreement has been placed on record to show that Green Star has engaged Commando Securities. As per Memorandum of Understanding, which is Annexure-P.2, it has been executed between Saini Motors, a partnership firm, and L.R. Builders. As per this MOU Saini Motors are the absolute owners of the land. It is stated in the MOU that amount due to the Bank is `15,32,50,000/- without interest. The second party shall develop, construct and build multiplex complex on the above noted land. The second party has already deposited `1 Crore under `No Lien Account' with the Bank. It is also written in this MOU that `6 Crores shall be paid within eight months after receiving the sanction letter from the Bank. The second party i.e. L.R. Builders will have all the sale rights with no interference from the Bank or the first party. The second party shall have complete rights to take decision on marketing, advertising, pricing and sale strategies. It is also written in the MOU that an amount of `1 Crore has been transferred by second party through RTGS (On Line) to SBI, SCB, Chandigarh, which will be kept under `No Lien Account' and the Bank may appropriate this amount in the account of Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [7] Saini Motors after necessary approval by the Bank and the Bank will immediately hand over possession of the land to the first party and allow the second party to start demolition/removal/sanction plan/construction work at the above noted property.
Annexure-P.3 is the Tripartite Agreement between Saini Motors, L.R. Builders and the Bank. Para 4 (d) of this Tripartite Agreement (Annexure-P.3) states that upon grant of approval to the OTS by the competent authority in the Bank and appropriation of `2 Crores in the loan account of Saini Motors, "the Owners" and "the Bank" shall hand over the custody of the said property to "the Builder" for development purposes only with no right for possession of the land. However, the legal possession shall remain with the Bank till all the dues of the Bank are cleared. Para 5 of this agreement shows that "the owners" agree in accordance with the terms and conditions, herein recorded to place at the complete disposal of the "the Builder" and authorizes "the Bank" hereby to give custody of the said property immediately upon approval of the OTS by the competent authority in the Bank and appropriation of `2 Crores in the account of Saini Motors with all the powers and authority as may be considered necessary by the Builder for construction of the proposed multi storied commercial complex and multiplex screens. Annexure-P.4 is the General Power of Attorney dated 23.1.2007 executed by Saini Motors in favour of L.R. Builders.
Annexure-P.5 is the General Power of Attorney dated 10.4.2007 executed by Saini Motors in favour of L.R. Builders. Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh
Cr. Misc. Nos.M-12103 of 2012 (O&M)etc. [8] Annexure-P.7 is the order dated 30.5.2011 passed by this Court in Civil Revision No.3604 of 2011 which shows that there is dispute between L.R. Builders and Saini Motors etc. Therefore, from the documents on record, it is clear that Saini Motors are the owners of the property and in view of the MOU, agreement to sell, Power of Attorney, Tripartite Agreement, it is clear that Green Star is not the owner of the property. Therefore, if Green Star is not the owner nor in possession, then they have no right to appoint any Commando Securities. Otherwise also, no document has been placed on record to show that Green Star etc. is the owner of this property as stated in the FIR. When the L.R. Builders have made payment of huge amount of `16 Crores, as argued, then the question of making attempt to commit theft or to trespass in the property looks improbable and rather, all this shows that this FIR has been lodged with ulterior motives at the instance of some one else. The registration of the FIR is total misuse and abuse of the process of the Court and law.
Therefore, finding merit in the present petitions, I allow both these petitions and FIR No.125 dated 4.6.2011 (Annexure-P.1) registered at Police Station Focal Point, Ludhiana for the offences under Sections 447, 511, 379 and 120-B IPC and (Sections 448 and 427 IPC, which were added later on in the challan), and all other subsequent proceedings arising therefrom are hereby quashed.
February 11, 2014. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh