CRIMINAL MISC. NO.M-24317 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 01, 2011 Jaspal Kaur Ladhar and others .....Petitioners VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Gurcharan Dass, Advocate, for the petitioners. Mr. G. S. Cheema, Sr.DAG, Punjab, for the State. **** RANJIT SINGH, J. The petitioners, who are all stationed in United States of America, have filed this petition for quashing of FIR registered against them under Sections 406, 420 IPC at Police Station Payal, Police District Khanna, District Ludhiana. The petitioners would also pray for quashing of the subsequent proceedings taken on the basis of this FIR. The petitioners would allege that false and frivolous case has been registered against them. Pleading innocence, it is pointed out that respondent No.2 has lodged this FIR on the basis of one application submitted to various functionaries of the State. Copy of this application is attached with the CRIMINAL MISC. NO.M-24317 OF 2010 :{ 2 }: petition as Annexure P-2. As per the allegations, petitioner Nos.1 to 3 had performed engagement ceremony of Gurpreet Singh Ladhar on 6.3.2009 with Mandeep Kaur, respondent No.2 at Village Ghudani Kalan. As per the complaint, the petitioners started professing before even 6.3.2009 that the marriage ceremony had to be performed in America. The engagement ceremony, thus, was fixed at G.K.Resort, Ghudani Kalan. As per the allegations made by respondent No.2, number of gifts items were given to the petitioners and their relatives on this engagement ceremony. Subsequently, petitioner No.1 i.e. Jaspal Kaur Ladhar submitted an application to S.S.P., Khanna, pointing out that engagement ceremony of her son was performed on 6.3.2009 and that she had arranged visa of respondent No.2 and they were waiting for her to reach United States of America. It is further alleged that father of respondent No.2 had married his daughter somewhere else with a boy, who had come from America and thus, he is harassing them a lot and demanding a sum of `5 lacs more after adjusting the articles/expenses incurred on the engagement. It was also stated in this application that petitioner No.1 had sent a sum of `1,000/- for interview of the girl. The petitioners returned to America on 25.3.2009. Petitioner No.4 had statedly applied for visa for respondent CRIMINAL MISC. NO.M-24317 OF 2010 :{ 3 }: No.2. Petitioner No.4 had further informed that appropriate visa-issuing post, where visa interview will take place, will be intimated. It is stated that on 31.12.2009, a phone call was given by father of respondent No.2 that he will send his daughter only if visa for him also is sent alongwith sum of `2.50 lacs for expenses and tickets to them. On the basis of this application, Incharge, M.D.Cell, Khanna, submitted a report on 20.2.2010 mentioning that a panchayati compromise had taken place and, thus, there was no truth in the application and recommended that the same be assigned to records. Petitioner No.1 again submitted another application on 21.5.2010 against Bhupinder Singh and Mandeep Kaur, alleging that father of respondent No.2 has now engaged his daughter with Arshdeep Singh son of Avtar Singh of Village Badjuran, Tehsil Amloh, District Fatehgarh Sahib. Said Arshdeep Singh was also residing in U.S.A and, thus, it was alleged that Bhupinder Singh and respondent No.2 had played fraud with them. In the application, it is further disclosed that all the articles given by the petitioners at the time of engagement were lying with them. This application was marked by SSP, Khanna to S.H.O., Payal. In this background, the petitioners have approached this Court for quashing the FIR registered against them under Sections 406, 420 IPC on a complaint made by the respondents. CRIMINAL MISC. NO.M-24317 OF 2010 :{ 4 }: Counsel for the petitioners submits that no offence under Sections 406 and 420 IPC is made out on the basis of allegations as alleged. In support, counsel has placed reliance on Bhaskar Lal Sharma & Anr. Vs. Monica, 2009(3) R.C.R. (Criminal) 866. The Hon'ble Supreme Court in this case has observed that any gift made to the bridegroom or his parents whether in accordance with any custom or otherwise would not constitute any offence under Section 406 IPC. This proposition of law, in my view, would not be attracted to the facts of the present case. The case before the Hon'ble Supreme Court was where the marriage in fact had taken place and the gifts, as per customs, were exchanged at the time of marriage. The observation in regard to offence under Section 406 IPC was made in that context. In the present case, the engagement ceremony had only been performed. Concededly, the gifts were given to the petitioners. Thereafter, the marriage has not been performed, may be because of any reason. Obviously, the complainant-respondent would blame the petitioners for cheating them by not performing the marriage after going to U.S.A. On the other hand, the petitioners are blaming the respondents for breaking the engagement and marrying respondent No.2 to another boy. All these allegations and counter allegations are required to be investigated and thereafter tested in Court of law. Offence of cheating would CRIMINAL MISC. NO.M-24317 OF 2010 :{ 5 }: not only depend upon gifts, if any, exchanged but may lead to cheating even if someone has deceived another in performing engagement and then not going ahead to perform marriage. It would not be appropriate for this Court to go into such factual issues to find fault with parties in not performing the marriage. An opportunity is to be given to the parties to substantiate the allegations made in the FIR. I am not prepared to accept that offence of cheating or under Section 406 IPC would not be made out in the facts and circumstances of the present case. All these pleas ought to be raised before the Trial Court. As has been observed in State of Madhya Pradesh Vs. Awadh Kishore Gupta and others, 2004(1) R.C.R. (Criminal) 233, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 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 CRIMINAL MISC. NO.M-24317 OF 2010 :{ 6 }: material. The Court has further held that 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. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding 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. Reference can be made to the case of Chand Dhawan (Smt.) Vs. Jawahar Lal and Ors., (1992(3) SCC 317, where it is observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. All these pleas are required to be established on the basis of evidence. Affidavits are not sufficient and no substitute of a trial. The factual position of the case, when considered in light of above principles, it can be said that it is not a fit case for quashing the FIR. Accordingly, no case for quashing the FIR is made out. CRIMINAL MISC. NO.M-24317 OF 2010 :{ 7 }: The present petition is accordingly dismissed. November 01, 2011 ( RANJIT SINGH ) khurmi JUDGE