CRM-M-29787-2011 (O&M [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-29787-2011 (O&M) Date of decision:23.11.2011 Isher Singh and another ...Petitioners Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. B.S.Sidhu, Advocate, for the petitioners. Mr. K.D.Sachdeva, Addl. A.G., Punjab. Mr. Puneet Bali, Advocate, for the complainant. ***** RAKESH KUMAR JAIN, J. The petitioners have prayed for pre-arrest bail in a case registered vide FIR No.104 dated 02.09.2011, under Section 420 of IPC at Police Station Sadar Khanna, District Ludhiana. In brief, the petitioner No.1 is the owner of 16 Kanals 04 Marlas of land who, vide an agreement dated 06.08.2008, agreed to sell the aforesaid land to one Mann Singh (since deceased) and Jaspal Singh (complainant) to the extent of 70% and 30% respectively @ `1.5 crores per acre and received a total earnest money of `30 lacs from both of them according to their shares. It is also not in dispute that before the sale deed could be registered, another sum of `30 lacs was received by the vendor/petitioner No.1. The due date for execution of the sale deed was 05.10.2009. Both the petitioner No.1 and the complainant were present in the Tehsil office for the purpose of registration of sale deed but before that, another vendee, namely, Mann Singh who had agreed CRM-M-29787-2011 (O&M [ 2 ] :::::::: to purchase 70% share out of the total land, had expired and as such, there was no-one on his behalf present in the Tehsil office for the purpose of execution of sale deed to the extent of his share. It is the case of the petitioner No.1 himself that he had asked the complainant to either bring the legal representatives of Mann Singh for the execution of sale deed to the extent of 70% share or in their absence or refusal, he should purchase the entire land as he was not ready and willing to execute the sale deed pertaining to the share which is agreed to be sold to the complainant. On the contrary, learned counsel for the complainant has submitted that the parties were bound by the terms and conditions of the agreement to sell which is not denied by the vendor and has no control over the LRs of Mann Singh as they are not related to him nor had the capacity to purchase his share as well. It is submitted that he is concerned with the 30% share for which he had already paid a sum of `18 lacs as earnest money and is ready and willing to pay the balance sale consideration which could be perhaps between `80-90 lacs. He further submitted that the petitioner No.1/vendor has become dishonest and as a matter of fact has cheated the complainant as he is neither returning the earnest money with interest nor coming forward for execution and registration of the sale deed to the extent of 30% share of land which was agreed to be sold to him and has rather filed a frivolous suit for grant of mandatory injunction laying out unnecessary conditions for sale of the entire land to the complainant. He has also submitted that at the time when the notice of motion was issued, he did not object to the bail application of petitioner No.2 who is the son of petitioner No.1 because he was made to understand by the then counsel appearing for the petitioner that he would seek instructions from petitioner No.1 either to return the earnest money with interest or register the sale deed to the extent of the share which was actually agreed to be sold to the complainant. He further submitted that the then counsel is superseded by the present counsel in order to come out of the oral statement made in the Court, which though is not recorded in the order dated 29.09.2011. Therefore, the conduct of petitioner No.1 also dis-entitles him from seeking the concession of CRM-M-29787-2011 (O&M [ 3 ] :::::::: pre-arrest bail. In support of his submissions, learned counsel for the petitioners has relied upon a decision of this Court in the case of Bal Krishna Garodia v. State of Haryana, 2011(3) R.C.R. (Criminal) 189 to contend that in case where the vendor fails to honour the agreement to sell, then the vendee/complainant has a legal remedy for enforcement of the agreement to sell which is totally denied by the vendor and for that matter invocation of criminal action to avoid payment of court fee and to pressurize the vendor through police should not be encouraged. In reply, it is submitted by learned counsel for the complainant that the said judgment is not applicable to the facts and circumstances of the present case because in this case, the petitioner No.1 did not deny the execution of the agreement to sell and the receipt of earnest money rather in order to usurp the earnest money and to avoid registration of the sale deed, he has devised a novel method by asking the complainant to either purchase the entire property which includes the major 2/3rd share of the deceased Mann Singh, whose legal representatives are still there, or to forget about the earnest money having already been paid by him. I have heard learned counsel for the parties and perused the available record. In this case, petitioner No.2, who was not the signatory to the agreement to sell, was granted anticipatory bail vide order dated 29.09.2011. He is stated to have joined the investigation and is not required by the police for further interrogation. Hence, the interim order dated 29.09.2011 qua petitioner No.2 is hereby made absolute subject to the conditions already contained therein. Insofar as the bail application of petitioner No.1 is concerned, the agreement to sell is categorically describing the separate shares of the vendees. There is no dispute that the complainant has already paid `18 lacs towards his share of earnest money in respect of the 30% share of the land which is sought to be purchased by him. He was present at the time of registration of sale deed with the balance sale consideration in the Tehsil office, but the petitioner No.1 CRM-M-29787-2011 (O&M [ 4 ] :::::::: decided not to execute the sale deed to the extent of his share on the ground mentioned hereinbefore, which is not legally sustainable. In view of the aforesaid facts and circumstances and without making any observation on the merits, I do not find it to be a fit case for grant of anticipatory bail to the petitioner No.1. Hence, the present petition is dismissed qua him. November 23, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE