1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF AUGUST, 2017 BEFORE THE HON'BLE MR[CASE NUMBER]JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO[CASE NUMBER]362/2017 BETWEEN: GAJENDRASINGH SAHANI S/O S[CASE NUMBER] RAJENDRA SINGH AGED ABOUT 70 YEARS R/AT 8/4, VASANTH VIHAR NEW DELHI-110 057[CASE NUMBER] PETITIONER (BY SRI[CASE NUMBER] A[CASE NUMBER]H[CASE NUMBER] BHAGAVAN, ADVOCATE) AND: JAI PRAKASH NARAIN S/O LATE R[CASE NUMBER]N[CASE NUMBER] PRASAD AGED ABOUT 52 YEARS R/AT 100, 5TH MAIN GRUHALAKSHMI LAYOUT BENGALURU-560 079[CASE NUMBER] RESPONDENT (BY SRI[CASE NUMBER] K[CASE NUMBER]G[CASE NUMBER] SADASHIVAIAH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR[CASE NUMBER]P[CASE NUMBER]C[CASE NUMBER] PRAYING TO SET ASIDE THE ORDER DATED 16[CASE NUMBER]11[CASE NUMBER]2016 PASSED BY THE LEARNED II ADDL[CASE NUMBER] CIVIL JUDGE AND JMFC, MAGADI PASSED IN [CASE NUMBER] AND CONSEQUENTLY QUASH THE PROCEEDINGS IN [CASE NUMBER] ON THE FILE OF II ADDL[CASE NUMBER] CIVIL JUDGE AND JMFC[CASE NUMBER], MAGADI[CASE NUMBER] 2 THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Respondent herein has filed a private complaint against petitioner-accused under [SECTION] [ACT] before Principal Civil Judge & JMFC, Magadi alleging thereunder that accused is a resident of New Delhi and was owning agricultural lands bearing [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER]123, 125, 129, 131, 150, 151, 155 and 157/2 of Gangenahalli village, Thavarekere Hobli, Bangalore South Taluk, in all measuring 37 acres having purchased the same from the erstwhile owner Sri Lalchand Memorial Charitable Trust under a registered sale deed dated 07[CASE NUMBER]10[CASE NUMBER]1972[CASE NUMBER] It was further alleged that accused who was an Officer of Indian Administrative Services was residing at places far away from Bengaluru and he was unable to manage the properties and as such, he had executed a General Power of Attorney in favour of the complainant on 05[CASE NUMBER]09[CASE NUMBER]2007[CASE NUMBER] It is further alleged that since accused was unable to look after said properties, he agreed to sell the same to complainant for a total consideration of ` 58,80,000/- and an agreement of sale came to be executed by accused in respect of entire extent of 37 acres on 11[CASE NUMBER]07[CASE NUMBER]2007 and pursuant to same revenue entries were changed to name of the complainant in so far as [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER]129 & 131 totally measuring 9 acre 32 guntas[CASE NUMBER] It is also alleged by the complainant that accused had executed a registered sale deed dated 10[CASE NUMBER]09[CASE NUMBER]2007 in favour of complainant in respect of 9[CASE NUMBER]32 acres and insofar as remaining extent measuring 27 acres 5 guntas, title deeds could not be executed in favour of complainant on account of there being discrepancy in the entries relating to the revenue records and as such, accused had executed a registered General Power of Attorney in favour of the complainant individually in respect of remaining survey numbers and said power of attorney came to be registered before Sub Registrar, Chandigarh on 05[CASE NUMBER]09[CASE NUMBER]2007[CASE NUMBER] Complainant has further alleged that supplemental agreement also came to be executed and affidavit confirming said transaction was also executed by the accused confirming the agreements executed earlier and also supplemental agreement by receiving full sale consideration and also executing seven (7) Power of Attorneys in favour of complainant which were duly registered in Sub-Registrar's office[CASE NUMBER]
2[CASE NUMBER] Complainant has further alleged that when there was a dispute relating to [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER]123 & 125 on account of claim made by one Sri [ENTITY] who claimed to have filed Form No[CASE NUMBER] 7A and as such, complainant was forced to file an appeal before Karnataka Appellate Tribunal and on contest, order of Land Tribunal dated 14[CASE NUMBER]05[CASE NUMBER]2003 came to be set aside in [CASE NUMBER][CASE NUMBER] It was also alleged that Sri [ENTITY] s/o Sri [ENTITY] had obtained an order from revenue authorities in respect of [CASE NUMBER][CASE NUMBER][CASE NUMBER] measuring 3 acres 5 guntas by getting revenue records mutated to his name and challenging the same, appeal has been filed before Assistant Commissioner and said order came to be set aside[CASE NUMBER]
Complainant has also alleged that suits filed by accused in [CASE NUMBER] and [CASE NUMBER] were compromised through complainant as his Power of Attorney holder and in fact Power of Attorney had to give up his right to an extent of 1[CASE NUMBER]20 acres in [CASE NUMBER][CASE NUMBER][CASE NUMBER] by virtue of compromise decree passed by Civil Court in said suits[CASE NUMBER] He has also alleged that there were civil litigations pending relating to different [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER] which complainant had got settled on account of his intervention[CASE NUMBER]
3[CASE NUMBER] It is the prime contention of the complainant before the jurisdictional Magistrate that when this was the state of affairs accused was watching all these deliberations which have unfolded and in spite of there being an agreement being executed in favour of the complainant, he had sold 4 acres 20 guntas in [CASE NUMBER][CASE NUMBER]No[CASE NUMBER]151 to one Sri [ENTITY], who was also well aware of the agreements executed in favour of complainant and also General Power of Attorneys executed in favour of complainant's sons and said [ENTITY] is also a witness to the General Power of Attorneys executed by accused in favour of complainant and without cancelling the same, portion of the property had been sold clandestinely with intention to deceive the complainant[CASE NUMBER] He has further alleged that out of eight (8) [CASE NUMBER][CASE NUMBER][ENTITY] which accused had agreed to sell had executed sale deeds in favour of two [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER] in favour of complainant and in respect of remaining [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER] sale deeds had not been executed on account of certain proceedings pending before jurisdictional Deputy Commissioner[CASE NUMBER] He has further alleged that accused having received full and final sale consideration in respect of entire land which was agreed to be sold and having executed registered General Power of Attorneys in respect of each [CASE NUMBER][CASE NUMBER]No[CASE NUMBER] individually including supplemental agreement and its confirmation thereof, had executed sale deeds in favour of third parties who were also aware of the right possessed by the complainant with an intention to defraud the valuable right of the complainant and with a malafide and criminal intention which act of the accused is punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION]/[SECTION] [ACT][CASE NUMBER] On these grounds, he sought for action being taken against petitioner - accused[CASE NUMBER]
4[CASE NUMBER] Learned Magistrate by order dated 16[CASE NUMBER]11[CASE NUMBER]2016 recorded the sworn statement of the complainant has ordered the Registry to register the said complaint as PCR and issued summons to the accused - petitioner[CASE NUMBER] As such, petitioner is before this Court for quashing of said proceedings[CASE NUMBER]
5[CASE NUMBER] Heard Sri [ENTITY], learned Advocate appearing for petitioner and Sri [ENTITY], learned Advocate appearing for respondent[CASE NUMBER] Perused the records[CASE NUMBER]
6[CASE NUMBER] It is the contention of Sri [ENTITY], learned Advocate appearing for petitioner that allegations made in the complaint will not disclose the commission of offences as alleged and dispute between the parties is purely of civil nature and documents relied on by the complainant before the learned Magistrate in general and agreement of sale dated 11[CASE NUMBER]07[CASE NUMBER]2007 in particular, primafacie is fabricated and as such, proceedings initiated by setting criminal law into motion be quashed[CASE NUMBER] He would also draw the attention of the Court to the very agreement of sale which has been relied upon by complainant namely, agreement of sale dated 11[CASE NUMBER]07[CASE NUMBER]2007 to contend that it would primafacie indicate it is a fabricated document, since as on the said date, accused was discharging his duties as a Member of Central Administrative Tribunal at Chandigarh and document in question would also disclose that same had been executed at Bengaluru and this fact itself was sufficient to disbelieve the claim of complainant and as such, learned Magistrate erred in issuing summons to the petitioner - accused[CASE NUMBER] He would also submit that dispute is purely of civil nature and parties are litigating before Civil Court namely, complainant has already instituted a suit in [CASE NUMBER] for setting aside the sale deed dated 05[CASE NUMBER]12[CASE NUMBER]2015 executed by accused in favour of Sri [ENTITY] (second defendant) as null and void and also for a direction to the defendants therein to execute sale deed in his favour and likewise suits 90/2016, 91/2016 and 92/2016 and [CASE NUMBER] for the relief of specific performance had been filed and as such, continuation of criminal proceedings against petitioner before the jurisdictional Court in [CASE NUMBER] would be an abuse of process of law[CASE NUMBER] Hence, he seeks for quashing of the proceedings in [CASE NUMBER] pending on the file of II Additional Civil Judge & JMFC, Magadi[CASE NUMBER]
In support of his submission, he has relied upon the following judgments:
(i) [PRECEDENT] [PRECEDENT] [PRECEDENT]
7[CASE NUMBER] Per contra, Sri [ENTITY], learned Advocate appearing for respondent would defend the initiation of proceedings against petitioner contending interalia that petitioner - accused being aware of the fact that he is a permanent resident of Delhi/Chandigarh had not only permitted the complainant - respondent to manage the agricultural properties in question and being aware of the fact that he is unable to take care of said property had agreed to sell the same in favour of the complainant for a total consideration of ` 58[CASE NUMBER]80 lakhs and on receiving entire sale consideration and confirming said execution of agreement of sale, he had also executed General Power of Attorneys individually in respect of each properties (each [CASE NUMBER][CASE NUMBER]No[CASE NUMBER]) and subsequently on receiving the balance sale consideration, had also executed supplemental agreements confirming execution of earlier agreement of sale as well as General Power of Attorneys and only on account of various disputes pending before different forums, registration of sale deeds could not take place and it was the complainant who was able to resolve all such pending disputes successfully either getting them resolved by entering into compromise or getting them adjudicated to its logical end successfully and accused on the know how of major disputes relating to the property in question had been resolved, had clandestinely sold the properties to two persons under five different sale deeds knowing fully well about agreements, General Power of Attorney's and deeds of confirmation having already been executed in favour of complainant[CASE NUMBER] He would also contend that one of the property which came to be purchased by Sri [ENTITY] is a witness to the agreement of sale as well as power of attorney as also the supplementary agreement dated 05[CASE NUMBER]09[CASE NUMBER]2007 executed by accused in favour of complainant and the fact that power of attorneys were got duly registered by accused himself and as such he cannot be heard to contend that there was no execution of agreement of sale or the purchaser [ENTITY] cannot plead ignorance of there being no existence of agreement of sale in favour of complainant[CASE NUMBER] Hence, he contends that from the initial stage itself accused had the intention to deceive the complainant and in this process he had dishonestly sold the properties which were subject matter of agreement of sale in his favour[CASE NUMBER] Hence, by relying upon the following judgments, he seeks for dismissal of the petition[CASE NUMBER]
(i) [PRECEDENT] M/S[CASE NUMBER]MEDCHL CHEMICALS AND PHARMA P[CASE NUMBER]
LTD vs M/S[CASE NUMBER]BIOLOGICAL E[CASE NUMBER] LTD & OTHERS
(iii) (1993) AIR (SCW) 2427 [PRECEDENT]
8[CASE NUMBER] Having heard the learned Advocates appearing for parties and on perusal of the case papers as well as the authorities relied upon by respective learned Advocates appearing for the parties, it requires to be observed at this stage itself that while examining a plea for quashing of proceedings initiated on the basis of private complaint lodged under [SECTION] [ACT] what is required to be examined is to find out or ascertained from the complaint so lodged to find out from the allegations made in the complaint as to whether complainant has laid the foundation of commission of offence or not[CASE NUMBER] There may be instances where a complaint is filed under [SECTION] [ACT] alleging offences of cheating having been committed by the accused and a thin line may exist between civil dispute and criminal dispute and there cannot be any straight jacket formula or abstract principle of law to state or categorize instances about circumstances where criminal law can be set into motion divorced from civil matter or vice versa[CASE NUMBER] There may be instances where they may go hand in hand and it all depends upon facts and circumstances of each case[CASE NUMBER] Therefore, an onerous duty is cast on the Court exercising extraordinary jurisdiction to scrutinize and examine the allegations made in the complaint to find out as to whether allegation made in the complaint would exclusively fall in the domain of a civil dispute or it could also fall within the domain of criminal liability and if the answer is in the affirmative, namely it may fall under both categories, then accused cannot be heard to contend that on account of there being an element of civil dispute, party alleging criminal liability is to be directed to proceed against accused only by continuing civil proceedings and not having recourse to action by initiating criminal prosecution[CASE NUMBER] At this juncture, it would be of benefit to note the authoritative pronouncement of this Court in the case of [PRECEDENT] whereunder it came to be held that only because civil law can be taken to recourse to would not necessarily mean that criminal proceedings would be barred[CASE NUMBER] There exists distinction between pure contractual dispute of civil nature and an offence of cheating, then, both proceedings can be proceeded with[CASE NUMBER] It is further held that breach of contract per se would not come in the way of initiation of criminal proceedings, yet in the absence of averments made in the complaint/petition wherefrom the ingredients of an offence can be found out, Court should not hesitate to exercise its jurisdiction under [SECTION] [ACT] inasmuch as, salutary purpose of [SECTION] [ACT] is to ensure that a person would not undergo harassment of litigation for number of years although no case has been made out against him[CASE NUMBER] It has been held when the matter which is essentially involving dispute of civil nature, same should not be allowed to be the subject matter of criminal offence[CASE NUMBER] It has been held:
"31[CASE NUMBER] Before parting, however, we may notice a decision of this Court in State of Madhya Pradesh v[CASE NUMBER] Awadh [ENTITY] [(2004) 1 SCC 691] whereupon strong reliance has been placed by Mr[CASE NUMBER] [ENTITY][CASE NUMBER] This Court, therein upon referring to [ENTITY] (supra) opined as under: ([ENTITY] case, [CASE NUMBER], para 11) "11[CASE NUMBER] As noted above, the powers possessed by the High Court under [SECTION] of the Code are very wide and the very plenitude of the power requires great caution in its exercise[CASE NUMBER] Court must be careful to see that its decision in exercise of this power is based on sound principles[CASE NUMBER] The inherent power should not be exercised to stifle a legitimate prosecution[CASE NUMBER] The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material[CASE NUMBER] Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage[CASE NUMBER] (See Janata Dal v[CASE NUMBER] H[CASE NUMBER]S[CASE NUMBER] Chowdhary and Raghubir Saran (Dr) v[CASE NUMBER] State of Bihar)[CASE NUMBER] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed[CASE NUMBER]
It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with[CASE NUMBER] In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive[CASE NUMBER] If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under [SECTION] of the Code[CASE NUMBER] It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal[CASE NUMBER] The complaint has to be read as a whole[CASE NUMBER] If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court[CASE NUMBER] When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance[CASE NUMBER] It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person[CASE NUMBER] The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings[CASE NUMBER]"
(Emphasis supplied) No exception can be taken to the aforementioned principles of law, as therein also it has categorically been held that exercise of inherent power under [SECTION] is permissible where allegations set out in the complaint do not constitute the offence for which cognizance has been taken by the Magistrate[CASE NUMBER] It is evidently a case of that nature[CASE NUMBER]"
9[CASE NUMBER] Hon'ble Apex Court in the case of [PRECEDENT] was examining as to whether a complaint filed against vendor of a property alleging that after receiving consideration from the complainant had refused to complete the sale transaction of land in question would be entitled to proceed against accused by initiating criminal proceedings and has answered in the negative, in the facts obtained thereunder particularly after noticing that complainant therein having not filed a suit for specific performance for a period more than 10 years and as such, it came to be held that initiation of criminal proceedings by the complainant is an abuse of Court process and as such to exercise civil rights which had become extinct by virtue of lapse of time, criminal proceedings cannot be set into motion[CASE NUMBER] Hence, criminal proceedings initiated came to be set aside by opining:
"5[CASE NUMBER] Aggrieved by the order of the High Court, this appeal has been preferred[CASE NUMBER] On 26th April, 2013, while issuing notice, this Court stayed further proceedings[CASE NUMBER] No one appears for the complainant in spite of service of notice[CASE NUMBER] Learned counsel for the appellant submitted that even if all the allegations in the complaint are taken as correct, complaint has been filed in the year, 2012 while the agreement to sell in question was executed in favour of the complainant on 16th March, 1989[CASE NUMBER] The second sale took place in the year 1999[CASE NUMBER] no suit for specific performance was filed for a period of more than 10 years[CASE NUMBER] In these circumstances, the complaint was an abuse of court's process to enforce civil rights which had become illegally unenforceable[CASE NUMBER]
6[CASE NUMBER] From the above undisputed facts, it is apparent that the impugned complaint is clear abuse of court's process[CASE NUMBER] It is not the case of the complainant that any proceedings were taken for the enforcement of the agreement to sell for a period of more than 10 years[CASE NUMBER] In these circumstances, the criminal proceedings initiated by the complainant are clear abuse of the process of court[CASE NUMBER]"
10[CASE NUMBER] Hon'ble Apex Court in the case of [PRECEDENT] has held that inherent powers under [SECTION] [ACT] can be exercised by the Court sparingly and in a situation to prevent abuse of process of law[CASE NUMBER] However, it has also been held thereunder that there cannot be any hard and fast rule laid down in that regard and the types of cases in which inherent power can be used to quash the proceedings[CASE NUMBER]
11[CASE NUMBER] In its authoritative pronouncement, Hon'ble Apex Court in [PRECEDENT] while reiterating the power available under [SECTION] [ACT] to the High Court for quashing the proceedings has held that jurisdiction though wide has to be exercised sparingly, carefully and with great caution and illustratively, contours have been defined as (1) to give effect to the order under the code; (2) to prevent abuse of the process of Court; (3) to otherwise secure ends of justice, that is, to do real and substantial justice[CASE NUMBER] It has been further held that Court exercising said power must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ultimate motive to pressurize the accused[CASE NUMBER] However, such power should not be exercised to stifle a legitimate prosecution, more so, when evidence has not been collected and produced before Court and issues involved are of such magnitude that they cannot be seen in their true perspective without sufficient material available on record[CASE NUMBER]
12[CASE NUMBER] Sri [ENTITY], learned Advocate appearing for petitioner by relying upon said judgment, has contended that principles laid down in [ENTITY]'s case is aptly applicable to the facts on hand and he would contend that this is a classic case where respondent is attempting to settle his scores with the petitioner by initiating proceedings by filing a complaint under [SECTION] [ACT] and without there being any material on record, trial Court has taken cognizance and issued summons to the petitioner[CASE NUMBER] He would draw the attention to paragraphs 21 & 22 of [ENTITY]'s case referred to supra to contend that facts alleged by the complainant can be ascertained only on the basis of evidence and documents that may be tendered by the parties before Civil Court of competent jurisdiction and as such criminal proceedings should not be allowed to be continued[CASE NUMBER]
13[CASE NUMBER] At this juncture, it would be apt and appropriate to notice that in [ENTITY]'s case, a charitable society had executed power of attorney and sale agreement in respect of land in favour of respondent No[CASE NUMBER]3 and on his failure to pay the balance sale consideration, after issuing notice, vendor had cancelled the agreement forfeiting the earnest money and had subsequently sold part of land in question therein to one "S" in order to protect interest of the society[CASE NUMBER] At that juncture, third respondent therein filed a criminal case against appellants under [SECTION] & [SECTION] [ACT] and in that background, Apex Court held that matter was purely of civil nature and even if the entire averments made in the complaint is taken to be truth and correct, no offence under [SECTION] & [SECTION] [ACT] is made out against appellants therein[CASE NUMBER] As such, judgment of High Court passed declining to quash the criminal proceedings initiated against appellants therein by third respondent came to be set aside and proceedings came to be quashed[CASE NUMBER]
14[CASE NUMBER] In the case of [PRECEDENT] Hon'ble Apex Court was examining as to the correctness and legality of quashing of the proceedings initiated by respondent therein against appellant since respondent had filed a complaint against appellant for the alleged offences punishable under [SECTION], [SECTION], [SECTION] and [SECTION]/[SECTION] [ACT] which was an outcome of transaction between appellant and respondent therein and it related to bulk sale of product known as 'Ethambutol Hydrochloride' which resulted in a dispute arising between contracting parties[CASE NUMBER] In the process of examining, Hon'ble Apex Court has held that quashing is an exception rather than a rule and quashing at the initial stage must have to be treated as rarest of rare case and not to scuttle the prosecution[CASE NUMBER] Averments or allegations made in the complaint have been succinctly discussed in detail by the Apex Court and on noticing its earlier judgment in the case of [PRECEDENT] whereunder Apex Court had observed as under:
"The ingredients required to constitute the offence of cheating are-
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) In cases covered by (ii)(b), the actor omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property[CASE NUMBER]"
It came to be held that in order to attract provisions of [SECTION] & [SECTION], the guilt intent, at the time of making the promise is an essential requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of [SECTION] or [SECTION][CASE NUMBER] Mensrea is one of the essential ingredients of the offence of cheating under [SECTION] [ACT] It has been further held that where allegations made in the complaint or statement of witnesses recorded in support of the same taken at their face value make out absolutely no case against accused or the complaint does not disclose the essential ingredients of an offence which is alleged against accused or where allegations made in the complaint are patently absurd or inherently improbable so that no prudent person can ever reach a conclusion and that there is sufficient ground for proceeding against accused or where discretion exercised by the learned Magistrate in issuing process is capricious, arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible or where complaint suffers from fundamental defects are the contingencies where this Court can exercise power vested under [SECTION] [ACT]
15[CASE NUMBER] In the light of above settled principles of law, facts on hand are requires to be examined[CASE NUMBER] As already noticed herein above, complainant by relying upon documents produced along with the complaint has contended that accused being well aware of the execution of agreement of sale dated 11[CASE NUMBER]07[CASE NUMBER]2007 and the subsequent individual General Power of Attorneys executed in respect of each survey numbers and also supplemental agreement in favour of complainant had sold 5 items of the property in favour of different persons and one of the purchaser being Sri[CASE NUMBER] [ENTITY] who was also a witness to all the documents executed by accused in favour of complainant and as such accused had intention from the beginning to cheat the complainant and this plea would reveal the fraudulent act allegedly committed by the accused[CASE NUMBER] It has been specifically pleaded and urged in the complaint to the following effect:
"17[CASE NUMBER] On perusal of the documents produced by the complainant clearly reveals the fact that the fraudulent act committed by the accused in defeating and defrauding the valuable rights of the complainant with a malafide and criminal intention[CASE NUMBER] The accused for having received the full sale consideration as far as back in the year 2007 itself by means of demand drafts to the tune of Rs[CASE NUMBER]58,80,000/- and allowed the complainant to enjoy the properties[CASE NUMBER] So also vide the litigations against the encroachers, trespassers and other persons who are trying to manipulate the records of the lands in question[CASE NUMBER] The complainant after having fought the litigations against the said illegal persons and got the revenue entries in the name of accused[CASE NUMBER] The accused instead of keeping quite and with dishonest intention in an illegal manner has executed the sale deeds by betraying the rights of the complainant and defeating the valuable rights of the complainant[CASE NUMBER] The act of accused is totally is of criminal nature and hence, is liable to be punished as contemplated under the provisions of [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION]/[SECTION] of [ACT][CASE NUMBER]"
16[CASE NUMBER] In the light of above said allegation made in the complaint, it has to be examined as to whether said allegations would make out any case against accused or it discloses the ingredients of an offence alleged against accused or allegations are absent and said allegations are so absurd or inherently improbable[CASE NUMBER] Whether allegations made in the complaint is true or otherwise is to be decided on the basis of evidence to be led at trial and at the initial stage, without there being any other contra material available on record except self assertion of the accused that agreement of sale itself is fabricated and concocted, complete go by cannot be given to the registered power of attorney executed by accused in favour of complainant which is duly registered in the office of the Sub-Registrar at Chandigarh[CASE NUMBER] Hence, at this stage it cannot be held or no conclusion can be arrived that allegations made in the complaint are either vague or so absurd that no prudent person can ever reach to a conclusion that there is no sufficient ground to proceed against accused[CASE NUMBER] Merely because the transaction is of civil nature would not prevent the complainant to establish the guilt of the accused as alleged in the complaint[CASE NUMBER] Whether or not allegations made in the complaint are true has to be decided on the basis of evidence which can tendered by the complainant at trial[CASE NUMBER] The voluminous documents produced by the complainant namely, 57 documents along with the complaint would clearly disclose that there existed transaction between the complainant and the accused and at no point of time during the interregnum period i[CASE NUMBER]e[CASE NUMBER], after the date of alleged agreement of sale or execution of the power of attorneys by the accused in favour of the complainant till filing of the complaint, there is a whisper on the part of accused denying receipt of huge consideration amounts from complainant[CASE NUMBER] In fact, accused has undisputedly executed sale deed in favour of the complainant on 10[CASE NUMBER]09[CASE NUMBER]2007 in respect of land bearing [CASE NUMBER][CASE NUMBER][ENTITY][CASE NUMBER]129 & 131 to an extent of 9[CASE NUMBER]32 acres and has also got it duly registered in the office of the Sub-Registrar on 10[CASE NUMBER]09[CASE NUMBER]2007[CASE NUMBER] Even these two bits of land according to complainant is also the subject matter of agreement of sale dated 11[CASE NUMBER]07[CASE NUMBER]2007[CASE NUMBER] When that being the factual position, at this juncture, it cannot be held that in the absence of any evidence available on record, a conclusion can be arrived that continuation of the proceedings against complaint would be an abuse of process of law or no prudent person could arrive at a conclusion that there is no offence (primafacie) made out against accused for being proceeded with[CASE NUMBER]
17[CASE NUMBER] Hon'ble Apex Court in the case of [PRECEDENT] has held that only because civil law can be taken recourse to would not necessarily mean that criminal proceedings should be barred[CASE NUMBER] However, there exists a distinction between pure contractual dispute of a civil nature and an offence of cheating[CASE NUMBER] It has been further held that in the absence of averments made in the complaint wherefrom the ingredients of an offence can be found out, the Court should not hesitate to exercise its jurisdiction under [SECTION] [ACT] Thus, emphasis has been laid on the averments made in the complaint[CASE NUMBER] If foundation has been laid in the complaint, that would suffice[CASE NUMBER] It does not necessarily mean that complainant should state in so many words that the intention of the accused was dishonest or fraudulent[CASE NUMBER] The complaint need not reflect the exact words used in a provision defining the offence[CASE NUMBER] As such, even in the absence of the ingredients of offence having not been specified in the complaint would not give rise to quashing of the proceedings[CASE NUMBER]
18[CASE NUMBER] Hon'ble Apex Court in the case of [PRECEDENT] has held that both criminal law and civil remedy are not mutually exclusive but clearly co- extensive and essentially differ in their content and consequence[CASE NUMBER] It is further held that object of criminal liability is to punish an offender who commits an offence against a person, property or the state which he is accused[CASE NUMBER] However, this does not affect civil remedies for suing the wrong doer[CASE NUMBER]
19[CASE NUMBER] In the light of aforestated discussion, this Court is of the considered view that on a holistic reading of the complaint as already noticed herein above, it cannot be said that averments or allegations made in the complaint does not disclose ingredients of offences as alleged therein[CASE NUMBER] However, this Court would hasten to add that no opinion is expressed on merits of the case namely, as to whether allegations made in the complaint are true or otherwise, since same has to be examined by the trial Court on the basis of evidence that may tendered by the parties[CASE NUMBER]
20[CASE NUMBER] In view of the discussion made hereinabove, this Court is of the considered view that facts obtained in the present case would not entail the petitioner - accused to seek for short circuiting the criminal law set into motion by the respondent-complainant[CASE NUMBER]
21[CASE NUMBER] It is needless to state that any observation made by this Court in the course of this order is for the limited purposes of examining the prayer for quashing the proceedings pending before trial Court and trial Court shall without being prejudiced by any of the observations made herein above shall proceed to adjudicate the matter on merits and in accordance with law[CASE NUMBER] Trial Court shall also take into consideration the age of accused as well as distance he has to travel between his present permanent place of residence and place where trial is being conducted while considering the application for exemption that may be filed by the petitioner - accused sympathetically[CASE NUMBER]
This Court does not find any other good ground to entertain this petition[CASE NUMBER] Hence, for the reasons aforestated, criminal petition is hereby dismissed[CASE NUMBER]
JUDGE *sp