Criminal Misc. M No.30689 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Misc. M No. 30689 of 2008 Date of Decision: May 18, 2009 Paramjeet Kaur and another ...........Petitioners Versus State of Punjab ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr. S.S.Deol, Advocate for the petitioners. Mr.Amandeep Singh Rai, Assistant Advocate General, Punjab ** Sabina, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure seeking quashing of FIR 224 dated 22.8.2006 under Section 420 of the Indian Penal Code (`IPC' for short) registered at Police Station Division No.4 Jalandhar and the subsequent proceedings arising out of the said FIR qua petitioners. The prosecution case, as per the FIR in question is that Baldeep Kaur and Avtar Singh were owners of plot No. 427 at Punjabi Bagh,Village Raipur Rasulpur vide sale deed No. 5652 dated 17.12.2004. On 30.3.2005, they mortgaged the plot in question with complainant-Bank and availed a loan of Rs.10,00,000/-. The said plot was sold by the owners to Arun Kumar Joshi. Purchaser availed a house loan of Rs.13.2 lakhs from the complainant-Bank. Later on, it came to the knowledge of the Bank that before 28.3.2005, Baldeep Kaur and Avtar Singh had executed a registered Criminal Misc. M No.30689 of 2008 2 power of attorney in favour of Kuldip Singh, petitioner No.2 and he sold the plot in question to his wife Paramjit Kaur (petitioner No.1) on 30.5.2005. Hence, Baldeep Kaur and Avtar Singh had illegally and unauthorisedly mortgaged the plot in question with Bank on 30.3.2005 with a view to secure loan of Rs.10,00,000/-. Thus, Baldeep Kaur and Kuldip Singh had committed fraud on the Bank involving loan amount of Rs.13.41.973.38 as on 31.10.2005. In view of the above fraud, Arun Kumar Joshi had not become owner of the plot in question. Hence, it was requested that the matter be inquired into. Learned counsel for the petitioners has submitted that the petitioners were bona fide purchasers. Agreement to sell was executed in favour of petitioner No.2 on 10.1.2005 by Avtar Singh and Baldeep Kaur. A general power of attorney was also executed in favour of petitioner No.2 by the sellers. As per the agreement to sell, Rs.3,00,000/- were paid to the sellers. It was also mentioned in the sale deed (Annexure P2) that the sellers had lost the original sale deed and whenever it was located, the same would be handed over to petitioner No.2. On the basis of the said general power of attorney, petitioner No.2 transferred the plot in question in the name of his wife by virtue of sale deed on 30.5.2005. The mutation was also sanctioned in favour of petitioner No.1. Avtar Singh and Baldeep Kaur had fraudulently sold the same plot to Arun Kumar Joshi on 27.6.2005. Petitioner No.1 had filed a suit for declaration that she was absolute owner of the plot in question against Baldeep Kaur and Avtar Singh and Arun Kumar Joshi. The said suit was decreed vide judgment dated 24.9.2008 (Annexure P8) and the sale deed executed by Baldeep Kaur and Avtar Singh in favour of Arun Kumar Joshi was held to be illegal and Criminal Misc. M No.30689 of 2008 3 was not binding on the rights of the petitioners. Learned counsel for the State has submitted that the matter had been inquired into and as per the written statement filed by Deputy Superintendent of Police City I, Jalandhar, the entire fraud was committed by Baldeep Kaur and Avtar Singh, whereas, the petitioners were bona fide purchasers of plot for consideration. The culpability of the petitioners had not been established during investigation so far. The case was still under investigation and the other accused were yet to be arrested. As per the judgment of the Civil Court, petitioner No.1 was bona fide purchaser of the plot in question. It has been held by the Apex Court in State of Haryana vs. Bhajan Lal, 1992 Supp (1) Supreme Court cases 335, 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 whereinsuch power should be exercised:- (1)Where the allegations made in the first information report or the complainant, 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 Criminal Misc. M No.30689 of 2008 4 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 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 Criminal Misc. M No.30689 of 2008 5 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 the 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." In the present case, admittedly, petitioner No.1 has purchased the plot in question on the basis of the general power of attorney executed by the original owners Avtar Singh and Baldeep Kaur in favour of petitioner No.2. Annexure P8 is the judgment passed in the civil suit filed by petitioner No.1 against Baldeep Kaur and Avtar Singh and Arun Kumar Joshi wherein it was held as under:- "Thus, plaintiff became the owner in possession of the suit property. Defendant No.1 and 2 is alleged to be claiming that they have executed a sale deed dated 27.6.2005 in favour of Criminal Misc. M No.30689 of 2008 6 defendant No.3 but on 27.6.2005 defendant No.1 and 2 were no more owners of the property in dispute as they have already entered into an agreement to sell with Kuldip Singh on 10.1.2005 and have also executed a power of attorney in his favour on 10.1.2005 and the plaintiff vide sale deed dated 30.5.2005 has already become owner in possession of the suit property and even the mutation has been sanctioned in her favour. Thus, the sale deed executed by defendant No.1 and 2 in favour of defendant No.3 on 27.6.2005 is null and void, ab-initio and is illegal and it is not binding on the rights of the plaintiff and the defendants, their attorney, nominees etc.are perpetually restrained from interfering into the peaceful possession of the plaintiff over the property/house in dispute and they are also restrained from transferring/alienating the same in any manner." Thus, as per the decision of the Civil Court, petitioner No.1 is bona fide purchaser of the plot in question. Deputy Superintendent of Police, City I Jalandhar in reply by way of affidavit in para 1 of the preliminary submissions submitted as under:- "That a case FIR No.224 dated 22.8.2006 under Section 420 IPC was registered at Police Station Division No.4 Jalandhar. Briefly stating, the facts of the case are that Shri S.K.Dutta, Senior Branch Manager of Synidicate Bank, Jalandhar has got registered a case against the petitioners, Baldeep Kaur, her husband Avtar Singh, Arun Joshi, now deceased, his wife Anita Joshi. The preliminary inquiry was conducted by the Incharge, C.I.A. Staff Jalandhar, which was forwarded by the Deputy Superintendent of Criminal Misc. M No.30689 of 2008 7 Police, Detective, Jalandhar. Avtar Singh and Baldeep Kaur had executed a General Power of Attorney No.2573 dated 10.1.2005 in favour of Kuldip Singh. They had also executed an agreement to sell dated 10.1.2005 accepting the entire sale amount of the plot of Rs.3 lacs from them. Later on Kuldip Singh had executed a sale deed No. 1166 dated 30.5.2005 in favour of his wife Paramjit Kaur, petitioner No.1. Baldeep Kaur and Avtar Singh had represented to Paramjit Kaur and Kuldip Singh at the time of executing a sale deed dated 10.1.2005 that their original sale deed was lost and they undertook to hand over the same to the petitioners if the same is traced. Avtar Singh and his wife Baldeep kaur had taken a loan of Rs.10 lacs from Syndicate Bank, Jalandhar on 28.3.2005 by mortgaging plot No.427 measuring 5 marlas 110 sq.feet. However, Avtar Singh and Baldeep Kaur had again sold this plot to Arun Kumar Joshi for Rs.14,50,000/- vide sale deed No. 1756 dated 27.6.2005 fully knowing well that he had already sold this plot to Paramjit Kaur and Kuldip Singh, petitioners and had also received the sale consideration. The entire fraud was committed by Baldeep Kaur and Avtar Singh whereas the petitioners are the bonafide purchasers of the plot who had the sale consideration. Baldeep Kaur and Avtar Singh were allowed anticipatory bail by the Hon'ble High Court vide order dated 23.10.2008 whereas Paramjit Kaur and Kuldip Singh, petitioners, were allowed anticipatory bail by the Court of Additional Sessions Judge, Jalandhar vide orders dated 30.5.2008 and 30.6.2008 respectively. The Court of Mrs. Manjinder Kaur, Criminal Misc. M No.30689 of 2008 8 Civil Judge (Junior Division) Jalandhar had also decreed the suit against Baldeep Kaur, Avtar Singh and Arun Joshi filed by Paramjit Kaur vide judgment dated 24.9.2008. The Court of Civil Judge had held in the judgment that the petitioners are the bonafide purchasers of the property. From the facts and circumstances of the case the culpability of the petitioners has not been established so far. The case is still under investigation and the other accused are yet to be arrested and it will take some time to complete the investigation". Since the petitioners have been found to be bona fide purchasers of the plot in question for consideration, the continuation of criminal proceedings against them would be nothing but an abuse of process of law. Petitioners are facing the criminal proceedings for the last more than two an a half year. During investigation, nothing incriminating has been found against the petitioners. Accordingly, this petition is allowed. FIR No. 224 dated 22.8.2006 under Section 420 IPC registered at Police Station Division No.4 Jalandhar and the subsequent proceedings arising out of the said FIR qua petitioners. (Sabina) Judge May 18,2009 arya Note: Whether to be referred to reporter? Yes