IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-14381 of 2008 Date of decision: 29th September, 2010 Promila Jain … Petitioner Versus State of Haryana and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sunil Panwar, Advocate for the petitioner. Mr. Himanshu Raj, Assistant Advocate General, Haryana for respondent No.1. Mr. Brijender Kaushik, Advocate for respondents No.2 and 3. Mr. Rahul Vats, Advocate for respondents No.4 and 5. KANWALJIT SINGH AHLUWALIA, J. In the present petition filed under Section 482 Cr.P.C., order dated 16th October, 2007 (Annexure P-5) passed by the Court of Additional Sessions Judge, Fast Track Court, Ambala has been assailed. The Additional Sessions Judge vide impugned order (Annexure P-5) had accepted the revision petition preferred by the accused-respondent and had dismissed the complaint instituted by the petitioner wherein the accused-respondent was summoned by the Court of Judicial Magistrate (1st Class), Ambala City for offence punishable under Sections 420, 406, 408, 427, 109 and 120-B IPC. The summoning order dated 31st January, 2006 passed by the Judicial Magistrate (1st Class), Ambala City has been annexed with the present petition as Annexure P-4. Briefly stated, the petitioner had filed a complaint (Annexure P-3) on 10th November, 1995 in the Court of Judicial Magistrate (1st Criminal Misc. No. M-14381 of 2008 Class), Ambala City. In the complaint, it was stated that Seema Jain and her husband Hemant Jain had executed an agreement to sell with the petitioner-complainant Promila Jain on 9th October, 1993, according to which they had agreed to sell the land, building, machinery, dies, blocks, raw material, finished goods and other assets of M/s Jain Packer and Die Cutter, and also the land, building, machinery, dies, block, raw material, finished goods and other assets of M/s Vallabh Packer Private Limited to the complainant. It was stated in the agreement that Seema Jain had a clear title of the land and building and will have the clear marketable title. The agreement to sell (Annexure P-1) dated 9th October, 1993 contained a specific recital, which reads as under: “4. That the third party will give the clear title of land & building to the first party. The land will have a clear and marketable title. The land is mortgaged to H.F.C. as guarantee for the loan of M/s Vallabh Packers Private Limited, which will not be considered as a charge the property.” It was stated in the complaint that the accused had failed to keep their part of the agreement and the complainant had approached the Court of Sub Registrar, Ambala for registration of the sale deed of the property mentioned in the agreement to sell. She appeared before the Sub Registrar, Ambala on 30th April, 1994 and got her presence marked. Since the accused No.1 and 2 failed to comply with the terms and conditions of the agreement, the Haryana Financial Corporation had sold the land and property belonging to M/s Vallabh Packer Private Limited. It was further stated that accused No.3, being a Chartered Accountant and accused No.4, being wife of the Chartered Accountant had also made misrepresentation. Thus, the amount paid by the accused as earnest money or in pursuance of the agreement to sell had been misappropriated by the accused. The Court of Judicial Magistrate (1st Class), Ambala held that prima-facie it has been proved by the 2 Criminal Misc. No. M-14381 of 2008 complainant that the accused hatched a conspiracy and had defrauded the complainant. The summoning Court further held that the mere fact that on a complaint made by the complainant, FIR was registered and a cancellation report was submitted, will not preclude the summoning Court to summon the accused for the trial. The summoning order was assailed by the accused-respondent by filing a revision petition. I have heard counsel for the parties. The primary grievance made by the petitioner-complainant is that the agreement could not be performed because during the pendency of the same, Haryana Financial Corporation sold the assets, qua which the agreement to sell was executed. A perusal of the agreement to sell reveals that the complainant was made aware of the fact that the property had been mortgaged to Haryana Financial Corporation. The revisional Court has rightly held as under: “9. … … … This is not the case of the complainant- respondent No.1 that the agreement to sell was entered because of any false report prepared by the Chartered Accountant, rather the meticulous appreciation of the agreement to sell Ex.C-3 clearly speaks out that it was disclosed to the complainant that there was certain financial obligation of the revisionists Seema Jain and Hemant Jain towards the Haryana Financial Corporation and Punjab National Bank. It seems that timely action was not taken by the complainant-respondent No.1 and resultantly the assets were acquired under Section 29 of the State Financial Corporation Act. The learned trial Court has held that the complainant-respondent No.1 has been deprived of the cash amount is not sufficient to constitute criminal offence. Mens rea is one of the basic element for constituting the criminal offence and this Court is of the view that the remedy open with the complainant was to sue for specific performance or for the recovery of the amount and criminal complaint is abuse of the process of law. Strangely enough the complainant Promila Jain did not step into witness box in the 3 Criminal Misc. No. M-14381 of 2008 preliminary evidence and appeared through her power of attorney holder which is unknown to the criminal law.” From the discussion made by the revisional Court, the arguments advanced and on the facts of the case, it is apparent that the present case is essentially a civil dispute and no criminal offence can be attributed to the petitioner. The agreement to sell was executed on 9th October, 1993. In the complaint, it has not been stated as to when the Haryana Financial Corporation sold the assets, for which the agreement to sell was executed. The only fact pleaded in the complaint is that on 30th April, 1994, the complainant had approached the Sub-Registrar, Ambala for registration of the sale deed. The impugned complaint was filed on 10th November, 1995. As to why the suit for specific performance was filed, there is no answer available. It cannot be said that at the time of execution of the agreement to sell, accused-respondent entertained an intention to cheat the complainant. Taking totality of facts and circumstances of the case into consideration, in a petition filed under Section 482 Cr.P.C. this Court is hesitant to disturb the findings returned by the revisional Court below. Hence, there is no merit in the present petition and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 29, 2010 rps 4