Criminal Misc. No. M-28593 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-28593 of 2010 (O&M) Date of Decision:September 28, 2010 Om Parkash Goyal ...........Petitioner Versus State of Punjab and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.J.S.Bedi, Advocate for the petitioner. ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of complaint No. 1 dated 24.1.2007 pending in the Court of Chief Judicial Magistrate, Patiala, titled as `Deepak Syngle vs. Om Parkash Goyal and others' (Annexure P14); summoning order dated 17.3.2008 (Anneuxre P16); order dated 30.8.2010 passed in revision (Annexure P17) and all subsequent proceedings arising therefrom. Learned counsel for the petitioner has submitted that the complaint in question was a counter blast to the FIR lodged by the petitioner against respondent No.2. In fact, the petitioner had filed a suit for specific Criminal Misc. No. M-28593 of 2010 (O&M) 2 performance of an agreement to sell executed by respondent No.2 in his favour. Petitioner had lodged FIR No. 219 dated 13.6.2002 under Sections 419,420,467,468,471,474,120-B IPC at Police Station Kotwali, Patiala. After a considerable delay, respondent No.2 lodged FIR No.339 dated 21.11.2003 against the petitioner under Sections 420,465, 467, 468, 471 IPC. The said FIR was duly investigated by the Police and a cancellation report was submitted in Court. The Court had, however, erred in summoning the petitioner on a protest petition filed by respondent No.2. No reliance could be placed on the report of the Expert. In support of his arguments, learned counsel has placed reliance on T.T.Antony vs. State of Kerala 2001(3)RCR (Criminal) 436 wherein it was held that a second FIR cannot be registered on receipt of subsequent information regarding the same incident. After hearing the learned counsel for the petitioner, I am of the opinion that the instant petition deserves to be dismissed. It has been held in 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:- Criminal Misc. No. M-28593 of 2010 (O&M) 3 (1)Where the allegations made in the first information report or the complainant, 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 institution and Criminal Misc. No. M-28593 of 2010 (O&M) 4 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.” The case of the petitioner is that respondent No.2 was owner of some property in Patiala along with his wife. An agreement to sell was executed by respondent No.2 and his wife in favour of the petitioner qua the sale of the said property. An amount of Rs.14,50,000/- was paid by the petitioner as an earnest money at the time of execution of agreement to sell dated 31.3.1999 (Annexure P1). The total sale consideration was Rs.24,50,000/-. The date for execution of the sale deed was fixed on or before 20.6.2000. Since respondent No.2 had failed to execute the sale deed in favour of the petitioner, the petitioner filed a suit for specific performance Criminal Misc. No. M-28593 of 2010 (O&M) 5 of the agreement to sell dated 31.3.1999. Petitioner lodged FIR No. 219 dated 13.6.2002 under Sections 419,420,467,468,471,474,120-B IPC at Police Station Kotwali, Patiala against respondent No.2 and his wife alleging therein that some false sale deeds have been fabricated by the accused in connivance with witness by producing some other lady as Gurbachan Kaur to defeat the rights of the petitioner. The Bank officials were also duped by the accused in order to get the loan amount from the Bank. Respondent No.2, on the other hand, lodged an FIR No.339 dated 21.11.2003 at Police Station Civil lines Patiala against the petitioner and others. The contents of the FIR (Annexure P10) read as under:- “Sir, it is humbly submitted that I a Deepak Singla s/o late Sh. Tara Chand r/o H.No.109 Raghubir Marg, Tehsil and Distt. Patiala. I have been running brick kiln under the name and style of Sahil Bricks Industries, BKO village Ulana. The accused Om Parkash Goyal is a coal merchant and is running business under the name and style of M/s Goyal Enterprises, Chotti Baradari, Patiala. In the last week of march, we were in need of coal for running our brick kiln. Since, we were having business dealings with the accused Om Parkash Goyal so we request him to supply coal in credit basis and that we will discharge the amount very shortly and for the same, Om Parkash Goyal agreed and asked us to give blank stamp papers duly signed by me and my wife, being security. On 31.3.99, I got Photostat copy of these blank stamp papers signed by me and by my wife and kept the same with me and then delivered the original blank papers signed by me and by my wife to Om Parkash Goyal at my residence in presence of Criminal Misc. No. M-28593 of 2010 (O&M) 6 Sandeep Singh Sandhu s/o Hardit Singh r/o 15, Hargobind Nagar, opposite Govt. Press, Sirhind Road, Patiala and Narinder Singh s/o Harnek Singh r/o village Bhatmajra, Teh & Distt. Patiala. Earlier, I had been running a brick kiln business at village Bhatmajra and accused Om Parkash Goyal used to supply me coal there also. After that on 05.04.99 Om Parkash Goyal supplied us coal worth Rs.2,88,120/- vide Bill No. 7 dated 5.4.1999 to our brick kiln. Apart from this, Om Parkash Goyal also took two blank cheques of my saving account No. 27099 and four blank cheques bearing cheques No. 780851 to 780854 from my current account of Punjab National Bank, the Mall, Patiala. The accused Om Parkash Goyal misused one blank cheque signed by me and delivered the same to Sham Lal Gogna Prop. M/s Ganesh Coal Supplies, Patiala. After hatching criminal conspiracy, all the accused with mala fide intentions forged one agreement to sell pertaining to our Kothi No. 109, Raghubir Marg, Patiala. This agreement to sell is false, fabricated and forged document prepared by Om Parkash Goyal, Joginder Singh and Arvind Nohria. In furtherance of their criminal conspiracy to defraud and cheat me and my wife from our kothi and as per contents of this forged agreement, the total consideration of our Kothi has been written as Rs.24,50,000/- whereas the market value of our Kothi is more than one crore rupees. Om Parkash Goyal and his co- accused Joginder Singh and Arvind Nohria further alleged in their forged agreement to sell that Om Parkash Goyal has paid Rs.14,50,000/- as earnest money to us. This agreement to sell has Criminal Misc. No. M-28593 of 2010 (O&M) 7 been prepared and forged on the blank papers on which our signatures i.e. of mine and my wife were obtained when these were blank, being security for supplying coal to our brick kiln and our signatures were obtained on these blank stamp papers on 31.3.1999 and later on, Om Parkash Goyal in connivance with his co-accused Joginder Singh and Arvind Nohria, forged agreement to sell pertaining to my house and same can be further confirmed from income tax return of Om Parkash Goyal and his firm for the period of which forged agreement to sell has been prepared by Om Parkash Goyal. So the balance sheet for the period of 1999- 2000, 2000-2001 of Mr. Om Parkash Goyal and his firm M/s Goyal Enterprises and his HUF returns are attached herewith. In fact, no agreement to sell of our house has ever been taken place with accused Om Parkash Goyal and we never received the alleged amount of earnest money of Rs.14,50,000/- from accused Om Parkash Goyal at all. Om Parkash Goyal after forging this agreement to sell of dated 31.3.1999 of our house, produced the same before your good self and by concealing the material facts got registered a false FIR No. 219 dated 03.06.2002 at Police Station Kotwali Patiala on the basis of false and fabricated story with some political influence. The accused Om Parkash Goyal in furtherance of his criminal conspiracy on the basis of this forged agreement to sell by producing the same in the court and by alleging the same as genuine filed a civil suit for specific performance and whereas Om Parkash Goyal himself is fully aware and knows that the agreement to sell is forged document Criminal Misc. No. M-28593 of 2010 (O&M) 8 and has been using the same in the Court as well as before yourself by claiming the same to be genuine document and in this manner Om Parkash Goyal and his companion, party men wanted to grab my house by committing fraud and forgery. Om Parkash Goyal in connivance with his other party men and co-accused Sham Lal Gogna forged my cheque just to pressurize me and to forcibly take money from me under deception and fraud and filled my cheque No. 780851 by forging and filling Rs.5,00,000/- (rupees five lakhs) in favour of Sham Lal Gogna Prop. M/s Ganesh Coal Supplier, 1 opposite Mohindra College Patiala and presented this cheque with mal fide intention in his Bank account, just to defraud me as I have no dealing with Sham Lal Gogna and I have not delivered any cheque to Sham Lal Gogna and Sham Lal Gogna also committed fraud and forgery by presenting the same through his Bank account. Now, you are,therefore, requested to take necessary action and register case against the culprits under Sections 420,467,468,471,120-B, 192, 195, 196, 199 and 200 IPC. Thanking you. Yours sincerely sd/- Deepak Singla." After investigation, a cancellation report was submitted by the Investigating Agency qua the said FIR. Notice was issued to respondent No.2 qua the cancellation report and a protest petition was filed by respondent No.2. On 17.3.2008, the Judicial Magistrate, First Class Patiala passed the following order on the cancellation report:- "Police has submitted the cancellation report in case FIR No. 339 dated 21.11.2003 under Sections 420,465,467.468,471 IPC. On notice complainant Deepak Syngle appeared in the court and Criminal Misc. No. M-28593 of 2010 (O&M) 9 made statement that he is not in agreement with the investigation conducted by the police. He also filed the protest petition and complaint under Sections 420, 467,471,120-B, 192, 195,196,199, 200 IPC. Heard and record perused. From the perusal of the statement of the witnesses recorded under Section 161 Cr.P.C., complaint documents i.e. copy of the expert opinion given by Navdeep Gupta Expert, there is sufficient material/evidence for summoning all the accused persons and as such all the accused persons are ordered to be summoned for the offences under Sections 420,465,467,468,471 IPC for 22.4.2008." Aggrieved by the said order, petitioner filed the revision petition and the learned Additional Sessions Judge, while dismissing the revision petition on 30.8.2010 (Annexure P17), in paras 10 and 11 of its order, has held as under:- "10. I have gone through the record. According to the complainant, the accused fraudulently forged and fabricated agreement to sell dated 31.3.1999 on blank stamp papers bearing signatures of the complainant and his wife Ranjita Syngle and thereafter used the same as genuine. Photstat copies of this agreement to sell dated 31.3.1999 and blank stamp papers bearing signatures of Deepak Syngle and his wife Ranjita Syngle are there on the file. Perusal of the same shows that agreement to sell dated 31.3.1999 is typed on the abovesaid blank stamp papers bearing signatures of the complainant and his wife. On the basis of said agreement to sell dated 31.3.1999, a suit for specific performance was filed by accused Om Parkash, which is stated to be pending Criminal Misc. No. M-28593 of 2010 (O&M) 10 before the court of learned Civil Judge (Senior Division), Patiala. A copy of plaint dated 20.7.2000 filed by the petitioner/accused and copy of written statement dated 19.12.2007 filed by the respondent/complainant are there on the file. On the basis of said agreement to sell dated 31.3.1999, a case FIR No. 219 dated 31.3.1999 under Section 419, 420, 120-B was also got registered by the petitioner/accused against the respondent/complainant at Police Station Kotwali, Patiala. A copy of said FIR is also there on the file. Further some other documents relating to dealing between respondent/complainant and the accused/petitioner are also there on the record of cancellation report. An inquiry into the allegations levelled by the respondent/complainant was also conducted by the SP(City) Patiala who opined that this case FIR No. 3339 be cancelled. Another inquiry was conducted by DSP (City II) Patiala. Statements of witnesses were recorded during the said inquiry proceedings. Statement of complainant Deepak Syngle, Narinder Singh, Ishwar Kumar as well as the accused were recorded during the inquiry proceedings, which are there on the file. Affidavits were also filed by Narinder Singh, Sandeep Singh and Deepak Syngle, which are there on the file. So, there is enough material record of the cancellation report showing that there exist sufficient grounds to proceed further against the accused for having committing the offence in question. 11. Further, complaint filed by the respondent/complainant against the petitioner/accused and others on 24.1.2007 was ordered to be clubbed with the abovesaid cancellation report vide Criminal Misc. No. M-28593 of 2010 (O&M) 11 order dated 27.9.2007 of the learned trial Court. Although no preliminary evidence was recorded in the complaint case, but alongwith the complaint several documents were placed on record by the respondent/complainant. Inquiry report dated 24.10.2005 of Sh.Navdeep Gupta, document expert is there on this record, who opined that agreement to sell dated 31.3.1999 has been fraudulently typed on blank stamp papers already having signatures of Deepak Syngle and Ranjita Syngle and the writing had been typed thereon afterwards." The reasons given by the Magistrate,while summoning the petitioner and his co-accused, are sound reasons because at this stage, the Magistrate was only required to see as to whether any prima facie case is made out against the accused or not. Learned Additional Sessions Judge has also given sound reasons while dismissing the revision petition filed by the petitioner. In the facts and circumstances of the present case, it cannot be said that two FIRs have been registered qua the same incident. Petitioner had lodged the FIR giving his version qua the execution of the agreement to sell in question in his favour and subsequent proceedings, whereas , respondent No.2 has given his version in the FIR lodged by him that the agreement to sell in question was, in fact, a result of fraud. Thus, it would not be just and expedient to quash the criminal proceedings at the very threshold. Both the parties have a right to establish their versions before the trial Court. Hence, the judgment relied upon by the learned counsel for the petitioner fails to advance the case of the petitioner as it is based on different facts. No ground warranting interference under Section 482. by Criminal Misc. No. M-28593 of 2010 (O&M) 12 this Court is made out. Dismissed. (Sabina) Judge September 28, 2010 arya Criminal Misc. No. M-28593 of 2010 (O&M) 13