Crl. Misc. No. M-29943 of 2009 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-29943 of 2009 (O&M) Date of Decision: 23.8.2011. Meena Walia and another ........Petitioners Vs. State of Haryana and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Hemant Bassi, Advocate for the petitioners. Mr. Amandeep Singh, Asstt. A.G. Haryana for respondent No.1. Mr. Mohd. Yousaf, Advocate for respondent No.2. ..... SABINA, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the FIR No. 179 dated 08.06.2009 (Annexure P-6), under Sections 406, 420, 120-B of the Indian Penal Code ('IPC' for short), registered at Police Station Ambala City, District Ambala and all the consequential proceedings arising therefrom. Learned counsel for the petitioners has submitted that the dispute between the parties was purely civil in nature. Respondent No.2 had filed a suit for possession by way of specific performance of agreement to sell in question dated 20.9.2007. In the said suit, the petitioner No.1 had filed her reply and had specifically pleaded that she was ready and willing to execute the Crl. Misc. No. M-29943 of 2009 (O&M) -2 - sale deed in favour of respondent No.2. However, respondent No.2 had been seeking dates in the said suit. Learned state counsel as well as counsel for respondent No.2, on the other hand, have submitted that the petitioners, with an intention to cheat the complainant, had taken ` 1,00,000/- as earnest money from her. The petitioners had not disclosed the fact that the house in question was mortgaged with the bank qua loan amount of ` 2,50,000/-. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. The contents of the FIR (Annexure P-6) read as under:- (1) That accused No.1 is owner of H.No. 1919, LIC, Housing Board, Sec-9, Ambala City and wanted to sell her house. (2) That accused No.2 who is the husband of accused No.1 approached the complainant for selling the said house as such accused No.1 entered into the agreement to sell the said house No. 1919, L.I.C., H.B. Sector-9, Ambala City with complainant vide agreement dated 20.9.2007 for a total consideration of Rs. 5,80,000/- (Five Lac eighty thousand) and took a advance money of Rs. 1,00,000/- (One lac) at the time of execution of the said agreement. (3) That the last date for the agreement was 30.10.07 when complainant was ready for execution and asked the original documents of the house then Crl. Misc. No. M-29943 of 2009 (O&M) -3 - accused No.2 told that he is ready to extend the time and shall give the same and also give the NOC from the Housing Board as such time was extended till 10.11.2007 but defendant failed to get the NOC and did not gave the original sale deed. (4) That the complainant had to mark her presence for the execution of sale deed with balance consideration but accused person failed to execute the sale deed. As such complainant was forced to file a case for specific performance in the court which is pending before the Hon'ble court for 10.9.2009. (5) That although complainant was just just having hint that accused have taken loan on the said house but the details were not known. However now complainant came to know that at the time of execution of the agreement the house was on loan from ICICI Bank and the house was mortgage with the bank and original sale deed is with bank and a amount of Rs. 2,50,000/- was taken on 24.11.2004 on the said house as such at the time of execution of agreement to sell the house was not free from charge thus the accused persons have cheated the complainant. The said house is still on loan with ICICI Bank vide Application No. 7774218648 and in the said loan accused No.2 is also a co-applicant. Crl. Misc. No. M-29943 of 2009 (O&M) -4 - (6) That both the accused joined hand with each other and cheated the complainant for the said amount of Rs. One Lac which was entrusted to accused No.1 for the sale of the said house in the court many time accused No.2 appear on behalf of accused No.1 and gave undertaken to produce the original sale deed but failed. (7) That both the accused have joined hands with each other and committed the offence under Section 420 IPC read with Section 120-B and Section 406 IPC as the amount of Rs. 1 lac was entrusted to accused No.1 for the sale consideration. This complaint is being filed without prejudice to the rights of the complaint in civil suit pending in the court. (8) That accused persons are of very nitorious nature and are in the habit of committing such like offence. (9) That the matter was reported to the police but no action was taken hence this complaint. It is therefore prayed that the complaint be sent to Police Station, Ambala City and a case under Section 420/406,120-B be registered against the accused persons and the accused persons be punished as per law. In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held Crl. Misc. No. M-29943 of 2009 (O&M) -5 - as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as Crl. Misc. No. M-29943 of 2009 (O&M) -6 - contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” A perusal of the FIR in question reveals that the dispute between the parties is purely civil in nature. The Crl. Misc. No. M-29943 of 2009 (O&M) -7 - complainant is aggrieved by the fact that the petitioners have not executed the sale deed in her favour in terms of the agreement to sell dated 20.9.2007. For redressal of her grievance, complainant-respondent No.2 has filed a civil suit seeking possession by way of specific performance of agreement to sell dated 20.9.2007. In the said suit, the petitioner No.1 has pleaded that she was ready and willing to execute the sale deed in favour of respondent No.2. As per Annexure P-5, the entire loan amount has been paid by petitioner No.1 to the ICICI Bank. Keeping in view the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. FIR No. 179 dated 08.06.2009 (Annexure P-6), under Sections 406, 420, 120-B IPC, registered at Police Station Ambala City, District Ambala and all subsequent proceedings, arising therefrom, are quashed. (SABINA) JUDGE August 23, 2011 Gurpreet