Crl.Misc.No.M-25838 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-25838 of 2010 (O&M). Decided on: September 06, 2010. Ugma Ram Chaudhary .. Petitioner VERSUS State of Punjab and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI * * * PRESENT Mr.Anand Pandit, Advocate, for the petitioner. M.M.S. BEDI, J. (ORAL) Petitioner seeks the quashing of FIR registered at the instance of complainants-respondent Nos.2 & 3 alleging that Dhanna Ram Chaudhary, fraudulently received a sum of Rs.8 lacs from the complainants as earnest money promising to sell the land belonging to the petitioner and further stating that he would get the power of attorney from the petitioner and transfer the land to the complainants. Counsel for the petitioner submits that the petitioner is no doubt the owner of the property but he has never authorized Dhanna Ram Chaudhary to execute any agreement of sale in favour . . . 1 Crl.Misc.No.M-25838 of 2010 (O&M) of complainants or in favour of any other person. The petitioner cannot be held liable for any act or conduct of Dhanna Ram Chaudhary if he had cheated the complainants. The petitioner has already filed a suit for injunction against the complainant from forcibly dispossessing the plaintiff from 21½ marlas of land which is the subject matter of the alleged agreement of sale. It has been informed that the challan has been presented. Heard. Prima facie from the allegations in the FIR, the petitioner does not seem to have persuaded the complainant to part with any property by any false promise. Allegations, if any, are against Dhanna Ram Chaudhary. In the absence of entire material which forms part of report under Section 173 (2) Cr.P.C., it will not be appropriate for this Court to express any opinion regarding the connivance of the petitioner with his co-accused Dhanna Ram Chaudhary. Whether there is any evidence regarding any relationship of Dhanna Ram Chaudhary with the petitioner; whether there is any admissible evidence regarding conspiracy of the petitioner with Dhanna Ram Chaudhary exists on record; whether any common intention with Dhanna Ram Chaudhary is attributed to the petitioner; and whether any offence of cheating by the petitioner is made out viz-a-viz, the complainant, cannot be appreciated in the exercise of powers under Section 482 Cr.P.C. Counsel for the petitioner has placed reliance upon State of Haryana & others Vs. Bhajan Lal and others, AIR, 1992, SCW, 237, to contend that if allegations in the FIR do not constitute . . . 2 Crl.Misc.No.M-25838 of 2010 (O&M) an offence then the FIR can be quashed. In that context, with the assistance of the counsel, I have gone through the FIR, Annexure P-5, in which though the basic allegations are against Dhanna Ram Chaudhary for having made an agreement of sale to sell the property of the petitioner Ugma Ram Chaudhary, but the copy of the sale deed in favour of the petitioner; the copy of jamabandi for the year 2001-2004, indicating the petitioner being owner of property, as per the revenue record, are prima facie suggestive of the fact that in case the unrebutted allegations of connivance of the petitioner with co-accused Dhanna Ram Chaudhary, are taken on its face value, it does not fall within the parameters of case State of Haryana & others Vs. Bhajan Lal and others (supra). In view of said circumstance, on the basis of allegations in the FIR the matter further requires scrutiny in the light of material which forms part of the report under Section 173 (2) Cr.P.C. Counsel for the petitioner has also placed reliance upon Inder Mohan Goswami and another Vs. State of Uttaranchal and Ors., AIR 2008 SC 251; Arun Kumar and another Vs. State of Punjab and another, 2006(3) Criminal Court Cases, 848; and Amir Chand and another Vs. Prem Chand, 2008 (2) Criminal Court Cases, 797, in support of his contention that when the dispute is regarding an agreement of sale or regarding receiving advance and subsequently refusing to execute the sale deed, it would merely constitute a civil liability and will be sufficient . . . 3 Crl.Misc.No.M-25838 of 2010 (O&M) enough to quash the FIR. I have considered the law laid down in the said judgments but appreciating the allegations against the petitioner of having connived with his co-accused in cheating the complainant with a sum of Rs.8 lacs and seen in context to the law laid down by the Hon'ble Apex Court in Central Bureau of Investigation Vs. Ravi Shankar Srivastva, 2006(7) SCC 128 and Preeti Gupta and another Vs.State of Jharkhand and others, JT 2010 (8) SC 410, that when the circumstances apparent on the record are incomplete and hazy requiring a scrutiny on the basis of evidence to be looked into, the High Court should not in the exercise of powers under Section 482 Cr.P.C., stifle a legitimate prosecution and quash the proceedings. At this stage, prima facie, it does not appear to be a case where the continuation of proceedings against the petitioner will be an abuse of process of the Court especially when he has got a right to show to the trial Court at the time of framing of charge that no offence is made out against him. Following the ratio of Central Bureau of Investigation Vs. Ravi Shanker, (Supra), wherein it was held that the inherent power should not be exercised to stifle the legitimate prosecution and the High Court being the Highest Court of the 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 collected has not been produced before the Court and the issue involve whether fraudulent or illegal cannot be seen without sufficient material. No hard and fast rule can be laid . . . 4 Crl.Misc.No.M-25838 of 2010 (O&M) down with regard to cases in which the trial Court will exercise its extra ordinary jurisdiction to quash the proceedings, at any stage. Counsel for the petitioner has further referred to S.P.Gupta, Vs. Ashutosh Gupta, JT 2010 (5) SC 331, to submit that in a case where complaint of cheating had been filed and accused persons had been summoned on the allegations that part payment had been made to an owner of the property besides handing over the possession to the complainant by the accused who was power of attorney holder of the sole owner but the property belong to HUF, there was misrepresentation, the High Court had not quashed the proceedings. The High Court had held that there was no ground to quash the proceedings. The Hon'ble Apex Court had upheld the order and after following the judgments of Hon'ble Supreme Court, the proceedings had rightly been not quashed. A perusal of the judgment indicates that the necessary ingredients which are required to establish cheating were discussed in the said case. The above judgment is of no assistance to the counsel for the petitioner. Dismissed. (M.M.S.BEDI) JUDGE September 06, 2010. rka . . . 5 Crl.Misc.No.M-25838 of 2010 (O&M) petition is disposed of as pre-mature with a direction to the petitioner to raise all the pleas before the trial Court at the time of framing of charges. The trial Court is expected to pass a speaking order regarding the role attributed to the petitioner. If the trial Court arrives at a conclusion that the material available on record i.e., report under Section 173 (2) Cr.P.C., no offence of cheating is made out, it will be open to the trial Court to discharge the petitioner. . . . 6