IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-34144 of 2008 Date of decision: 24th March, 2009 Sukhwinder Kaur … Petitioner Versus State of Punjab and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Manish Kumar Singla, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General Punjab for the State. Mr. Vikram Bali, Advocate for respondent No.2. Mr. S.S. Hira, Advocate for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner has filed present petition under Section 482 Cr.P.C. seeking quashing of the FIR No. 339 dated 19.09.2008 (Annexure P-1) registered at Police Station Tripari, District Patiala under Sections 406, 420 IPC. Mr. Mehardeep Singh, Assistant Advocate General Punjab appearing for the State has submitted that prosecution has filed final report under Section 173 Cr.P.C. (challan) and 15th April, 2009 is fixed for framing of the charge. Ranjit Singh, husband of the petitioner was owner of a Gas Agency. It is stated in the FIR, that during the operation of Gas Agency, complainant has advanced Rs.9.00 lakh as loan to Ranjit Singh. A perusal of the FIR reveals that an agreement was arrived at between Ranjit Singh Criminal Misc. No. M-34144 of 2008 and Kulwant Kaur, complainant. Kulwant Kaur had stated that source of amount was retiral dues received by her father-in-law. It is stated that petitioner had consented to the agreement by which complainant had to become partner. Agreement contained a condition that Kulwant Kaur shall be entitled to 1/3rd share of profit of the Gas Agency and in case the profit is not paid, she will become partner/owner to the extent of 1/3rd share. It is stated that Ranjit Singh died on 14th May, 2006 and petitioner, after the death of Ranjit Singh has sold the Gas Agency, therefore, Kulwant Kaur has been deprived of the amount advanced. Mr. Vikram Bali appearing for the complainant respondent No.2, in his eloquence, has stated before this Court that once due to the consent of the petitioner, Kulwant Kaur complainant became owner of 1/3rd share, then Gas Agency could not be sold without taking consent of the complainant. To repudiate this contention, Mr. Manish Kumar Singla has stated that Rs.9.00 lakh have been paid. Receipt has been executed and the same is on the police file. It has further been submitted that Gas Agency has not been sold. Petitioner Sukhwinder Kaur has only entered into a partnership with Naval Kishor and Gurparan Singh. Mr. Vikram Bali has submitted that as per the agreement, both Naval Kishor and Gurparan Singh were inducted as partners and Rs.30.00 lakhs were received as goodwill amount, therefore petitioner is bound to return the same. Whether the amount has been returned or not, is a matter of fact, to be proved by evidence. Counsel for the State, on instructions from Manjit Singh Head Constable, has submitted that amount has been returned to Kulwant Kaur. 2 Criminal Misc. No. M-34144 of 2008 What criminal liability of the petitioner is made out in these circumstances, is one question on which the Court has to ponder. Mr. Vikram Bali has submitted that since execution of the receipt is not denied, therefore, an opportunity be given to the parties to advance their arguments before the trial Court. In case contention of either party is not accepted, they will have right of revision. Mr. S.S. Hira has filed an application and has got impleaded Sohan Singh. In the FIR lodged at the instance of Kulwant Kaur, one Sohan Singh had also filed an application that he has also been duped of Rs.9.70 lakhs, which he has advanced as loan to Ranjit Singh. It is stated that Sohan Singh was employed as Manager in the Gas Agency, managed and run by Ranjit Singh. It has further been submitted that profits in the shape of interest were to accrue to Sohan Singh and the amount was not paid. After the death of Ranjit Singh on 14th May, 2006, an understanding was arrived between Sukhwinder Kaur accused and Sohan Singh that out of the funds received by entering into partnership of the Gas Agency, she will redeem the mortgage of the house of Sohan Singh as Sohan Singh had lent the amount of Rs.9.70 lacs as advance to Ranjit Singh, husband of the petitioner, after mortgaging his house. It has been stated that house was mortgaged for Rs.5.00 lacs. Therefore, as pe the understanding, Sukhwinder Kaur had not only to redeem the mortgaged house of Sohan Singh but had also to pay the balance to Sohan Singh. Mr. Hira has stated that breach of understanding by Sukhwinder Kaur amounts to cheating. Whether the advancement of loan to the husband of the petitioner will constitute an offence of cheating or not, is another question, which requires consideration. 3 Criminal Misc. No. M-34144 of 2008 Mr. Hira has adopted the arguments raised by Mr. Vikram Bali and has stated that from the conduct of the accused also, cheating can be attributed to her. He has further submitted that since case is fixed for framing of charge, let trial Court formulate an opinion so that either of the parties can approach the revisional Court. Mr. Vikram Bali and Mr. S.S. Hira has reminded this Court of its limited powers under Section 482 Cr.P.C. and have stated that the same should be sparingly used, especially when trial Court is seized of the matter. As an abundant caution, this Court will not interfere at this stage. However, parties may raise all arguments before the trial Court and they will be at liberty to assail the order of the trial Court by preferring a revision petition. Needless to say, parties will be at liberty to raise all arguments before the trial Court, which shall be considered and dealt with by the trial Court. Petitioner is a lady, therefore, taking this fact into consideration, her personal appearance, before the trial Court shall remain exempted, subject to her filing an undertaking that she shall cause her appearance as and when required by the trial Court. She shall also file an undertaking that the evidence, if any, recorded in her absence but in the presence of her counsel, shall be binding upon her. The trial Court may incorporate any other conditions in the undertaking to be submitted by the accused. [KANWALJIT SINGH AHLUWALIA] JUDGE March 24, 2009 rps 4