IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-53071 of 2007 Date of decision : August 19, 2009 Joginder Singh and others ....Petitioners versus State of Punjab and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Gourave Bhayyia, Advocate, for the petitioners Mr. Gaurav Garg Dhuriwala, AAG Punjab for respondent no. 1 Mr. AK Khungar, Advocate for respondent no. 2 L.N. Mittal, J. (Oral) Joginder Singh and his five sons have filed this petition under section 482 of Code of Criminal Procedure (for short, Cr.P.C.) for quashing of FIR No. 157 dated 26.5.2007, under section 420 IPC, Police Station Sadar Fazilka, District Ferozepur (Annexure P/1) along with all consequential proceedings arising therefrom. Mukhtiar Singh respondent no. 2 lodged the impugned FIR. Petitioner no. 1 is father of respondent no. 2 whereas petitioner nos. 2 to 6 are real brothers of respondent no. 2. As per allegations in the FIR, petitioner no. 1 exchanged his land measuring 20 kanals 2 marlas situated in village Pukka Chisti with 19 kanals 5 marlas of land of respondent no. 2 Criminal Misc. No. M-53071 of 2007 -2- situated in village Apni Khio Wali vide agreement dated 10.5.2000 and possession of the land was also accordingly exchanged. However, petitioner no. 1 subsequently resiled from the promise of exchange and transferred his 20 kanals 2 marlas land (which had been given in exchange to respondent no. 2) to petitioner nos. 2 to 6 by executing a deed. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners contended that it is a case of division of property among the brothers and not a case of cheating. It was further contended that respondent no. 2 had taken loan by creating charge on 13 kanals 16 marlas land out of the land given by him in exchange to petitioner no. 1 and as per affidavit Annexure P/3 dated 10.5.2000 (affirmed by respondent no. 2 on the date of exchange agreement itself), respondent no. 2 was to clear the bank loan with interest before 10.9.2000, but respondent no. 2 complainant himself did not clear the said loan and therefore, the exchange did not materialise. Learned counsel for respondent no. 2, on the other hand, contended that the aforesaid bank loan stood waived as per scheme of Central Government and there is, therefore, no charge on the land given by respondent no. 2 in exchange to petitioner no. 1. It was also contended that respondent no. 2 is still in possession of the land which he had got in exchange from petitioner no. 1 and similarly petitioner no. 1 is in possession of the land which he got in exchange from respondent no. 2. I have carefully considered the rival contentions. The contention of learned counsel for respondent no. 2 that bank loan stands waived as per waiver scheme of Central Government Criminal Misc. No. M-53071 of 2007 -3- cannot be accepted because there is not even a shred of material on record to substantiate the said contention. In fact, no such plea has even been raised in the reply by respondent no. 2. On the other hand, reply on behalf of respondent no. 2 has been filed under the signatures of the counsel only. The said reply has neither been verified by anybody nor is supported by any affidavit and therefore, there is no sanctity attached to the averments made in the said reply which is just a waste piece of paper. On the contrary, the averments made in the petition have been supported by affidavit of petitioner no. 1. Therefore, the averments made in the petition by the petitioners stand un-controverted. In addition to the aforesaid, perusal of affidavit, Annexure P/3 reveals that the complainant-respondent no. 2 was to clear the bank loan upto 10.9.2000. However, he did not clear the said loan by the stipulated date. The waiver scheme of the Central Government came much later and it is also not shown that the aforesaid loan of respondent no. 2 was covered by the said waiver scheme or not. Even if it is assumed that loan of respondent no. 2 is covered by waiver scheme, the fact remains that the loan was not cleared till 10.9.2000 as stipulated in affidavit Annexure P/3, being condition of exchange. It would also not be out of place to notice that according to version of the complainant himself, exchange had taken place on 10.5.2000 and complainant is still in possession of the land given to him in exchange by petitioner no. 1. Consequently, if any deed has been executed subsequently by petitioner no. 1 in favour of petitioner Nos. 2 to 6 regarding the said land, it would not constitute offence of cheating because it is not Criminal Misc. No. M-53071 of 2007 -4- even the case of the complainant that at the time of exchange, petitioner no. 1 or for that matter, petitioner Nos. 2 to 6 who had nothing to do with the exchange, had any dishonest intention. Subsequent transfer of the land on 18.5.2006 i.e. after six years of the exchange would not constitute cheating as there was no dishonest intention at the inception i.e. at the time of exchange. The dispute at the most is of civil nature. On the other hand, respondent no. 2 has himself been dishonest by not clearing the bank loan which was a condition for the exchange of lands. Continuation of proceedings pursuant to the FIR would be abuse of process of the court which has to be injuncted by this Court by exercising inherent powers under section 482 Cr.P.C. The averments made in the impugned FIR do not prima facie disclose the commission of offence under section 420 IPC or any other offence. In view of the aforesaid, the instant petition is allowed and the impugned FIR No. 157 dated 26.5.2007, under section 420 IPC, Police Station Sadar Fazilka, District Ferozepur (Annexure P/1) is quashed along with all consequential proceedings arising therefrom. However, it is expressly made clear that nothing observed herein above shall have any bearing regarding civil rights of the parties. ( L.N. Mittal ) August 19, 2009 Judge 'dalbir'