CRM No.M-33862 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-29.9.2010 Devender Pal & others ...Petitioners Versus The State of Haryana & another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Vikas Kumar, Advocate for the petitioners. Mr.Vikas Malik, A.A.G.Haryana for respondent No.1. Mr.Adarsh Jain, Advocate for respondent No.2. M ehinder S ingh S ullar , J . (Oral) The symposium of the facts, culminating in the commencement, for deciding the core controversy raised in the present petition and emanating from the record, is that in the wake of complaint of Manmohan Singh son of Mohinder Singh (respondent No.2), the present case was registered against the petitioners- accused, namely, Devender Pal, Satpal and Narender Pal sons of late Om Dutt, vide FIR No.482 dated 22.8.2008 (Annexure P1) on accusation of having committed the offences punishable under sections 406, 420 and 120-B IPC by the police of Police Station Faridabad Central, with the following allegations:- “It is submitted that I, the applicant Manmohan Singh son of Mohinder Singh, am resident of House No.436, Sector 15, Faridabad. I entered into an agreement of sale on 18.6.2003 with Devender Pal, Satpal and Narender Pal all sons of Om Dutt residents of House No.1-C, 113-114 NIT Faridabad to purchase half share in the land measuring 0 kanal 8 marlas comprised in khasra No.1613 situated in the area of village Anangpur, Tehsil and District Faridabad. An amount of Rs.1,00,000/- (One lac only) was paid by me as earnest money to aforementioned Satpal etc. The vendors had disclosed to me that total area of the land CRM No.M-33862 of 2008 2 under sale was 600 Sq.yards whereas the actual area available at the spot was only 470 Sq.yards. The vendors had also concealed from me that their sister was also a co-owner of the land whereas her name stands recorded in the revenue record. Today I have come to know that the aforementioned vendors have further sold the said plot to Sh.Rajesh Bhatia son of Sh.Bhagwan Dass, resident of HouseNo.3-C/93, New Town Ship, Faridabad. The photocopy of which stands appended herewith this application. The application has got his presence marked i the office of Sub Registrar Faridabad regarding the sale of aforementioned area. The photocopy of which also stands appended herewith this application. Sir, earlier also I submitted an application dated 26.2.2008 with the crime branch of your office regarding this very occurrence. You are, therefore, requested to take strict action against the aforementioned accused persons after carrying out the investigation of this case.” 2. Aggrieved by the initiation of criminal prosecution, the petitioners filed the instant petition for quashing the FIR (Annexure P1), invoking the provisions of section 482 Cr.PC. 3. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context. 4. As is evident from the record that the complainant entered into an agreement to sell dated 18.6.2003 with the petitioners to purchase half share in the land measuring 0 kanal 8 marlas. An amount of Rs.1 lac was paid as earnest money. The sale deed was to be executed on or before 18.8.2003. According to the petitioners, they were ready and willing to perform their part of contract, but the complainant failed to get the sale deed executed and registered, despite legal notice (Annexure P3) in this regard. 5. It is not a matter of dispute that the complainant earlier filed a complaint dated 26.2.2008 containing the same very allegations as mentioned in the present FIR. The detailed inquiry/investigations were carried out in order to CRM No.M-33862 of 2008 3 verify the allegations made in the complaint and the police authorities found the same to be false, came to the conclusion that no offence was made out against the petitioners and recommended for filing it. The report dated 10.5.2008 submitted by the Investigating Officer was perused and accepted by the SSP Faridabad, who ordered the filing of the complaint on the same allegations. 6. The matter did not rest there. Even the complainant filed a civil suit No.452 dated 26.9.2007 against the petitioners, which was dismissed as well by the Addl. Civil Judge (Senior Division), Faridabad, by virtue of order dated 10.10.2007 (Annexure P4), which is to the following effect:- “Power of attorney on behalf of defendants filed. Heard. This suit has been filed by the plaintiff for a decree for permanent injunction restraining the defendants from alienating suit land to any other person alleging that the defendants agreed to sell the suit property to him vide agreement of sale dated 18.6.2003 for a sale consideration of Rs.11,00,000/- and received a sum of Rs.1,00,000/- from him as earnest money. The plaintiff has admitted that the last date for execution the sale deed was fixed as 18.8.2003 but on the date fixed the defendants did not turn up in the office of Sub Registrar for executing the sale deed, since the date for execution of the sale deed has already expired, the plaintiff has remedy to file the suit for specific performance of the agreement and the suit for permanent injunction is not maintainable. It has been held by the Hon'ble Punjab and Haryana High Court in case of S.K.Dadwal Vs. Prem Singh and others, 1989 CCC 177 that in case of agreement of sale, suit for permanent injunction is not maintainable,as plaintiff has equally efficacious remedy of suit for specific performance. Since suit is not maintainable, plaint is rejected. File be consigned to record, after due compliance.” 7. That means, the dispute is purely of a civil nature, which has already been decided against the complainant. The complainant, in order to prove the criminal offence of cheating, is required to show that the accused had fraudulent and dishonest intention at the time of making promise or representation even in case where the allegations are made in regard to the failure on the part of the accused to keep his promise. In the absence of culpable intention at the time of CRM No.M-33862 of 2008 4 making initial promise being absent, no offence under section 420 IPC can be said to have been made out. Therefore, the matter, which essentially involves dispute of civil nature, should not be allowed to become subject matter of criminal proceedings, which may be resorted to as a short cut to execution of a non-extent decree. The subject matter of the instant FIR, squarely falls within the ambit of civil dispute, which has already been decided against the complainant by the civil Court. It cannot again legally be permitted to be agitated in the garb of criminal prosecution otherwise there will be no end of unwarranted litigation. 8. Meaning thereby, the initiation and continuation of criminal prosecution is nothing but sheer and deep misuse of process of criminal law and deserves to be quashed in the obtaining circumstances of the case. 9. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 10. In the light of the aforesaid reasons, the instant petition is allowed. Consequently, the FIR (Annexure P1) and all subsequent proceedings thereto are hereby quashed and the petitioners-accused are discharged in this relevant contention. 29.9.2010 (Mehinder Singh Sullar) AS Judge