CRM No. M-41475 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision:August 26 , 2011 Crl. Misc. No. M-41475 of 2007 R.K.Garg ...........Petitioner Versus State (UT Chandigarh) ..........Respondent Crl. Misc. No. M-41477 of 2007 Kuldeep Rai Deep ...........Petitioner Versus State (UT Chandigarh) ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Salil Bali, Advocate for the petitioner Mr.Deepak Kalia, Advocate for Mr.Rajiv Sharma, Advocate for UT Chandigarh. None for respondent No.2 ** Sabina, J. Vide this order, the above mentioned two Criminal Misc. petitions are being disposed of as both these petitions have been filed CRM No. M-41475 of 2007 2 under Section 482 of the Code of Criminal Procedure, 1973, wherein, the petitioners are seeking quashing of FIR No. 467 dated 28.9.1999 under Sections 406/420/467/468/471/120-B of the Indian Penal Code (for short`IPC) registered at Police Station Central, Sector 17,Chandigarh. The contents of the FIR (Annexure P6) read as under:- “That Sh.R.M.Shrma, Prop of Esserr Dealer R/o H.No. 433A, Sector-2, Panchkula, Rajinder Kumar Goyal R/o H.No.451 Sector 15, Panchkula and Sh.R.K.Garg r/o H.No.451, Sector 15, Panchkula and Sh.R.K.Garg r/o H.No.938,Sector 9, Panchkula used to visit my house and persuaded me to purchase a plot from them. Initially, I was not interested to purchase the plot but later on, on their continuous persuasion, I agreed to their proposal and there was agreement to sell and I agreed to purchase the plot at a total sale consideration of Rs. 5,25,000/- and on 5th Sept., 1995 I made the total amount for the purchase of plot in Sector 5, Mansa Devi Complex, Panchkula and the payment was made to Sh.R.K.Garg. The sale price of the plot in question was agreed for Rs.5,25,000/- and the same paid in 2-3 installments through Ch.No.260755 dated 4.9.1995 for Rs. 2,20,000/- in favour of K.R.Deep drawn on Bharat Overseas Bank Ltd., Sector 22-D, Chandigarh. The cheque was encashed by him as directed by Mr. R.M.Sharma and R.K.Goyal through his banker. The Bank of Bikaner and Jaipur Sector 17-D, Chandigarh and Rs. 2,20,000/- in cash to Mr.R.K.Garg and a proper receipt for the same was also issued by him which was witnessed by Sh.R.M.Sharma Prop. of Esserr Property Dealer. In the first instance Mr.R.K.Garg, CRM No. M-41475 of 2007 3 Mr.R.K.Goel wanted the full payment through pay order, but oater on he asked for the payment in cash which the complainant did in the presence of Sh.R.M. Sharma and the cash payment which I made was shared by Sh.R.M.Sharma and RK.Goel etc. That at the time of agreement the above mentioned seller have shown the plot to the complainant at Mansa Devi Complex Sector 5, Panchkula in the presence of other family friends of the complainant, which includes Sh. M.R.Bhargava and Sh. V.K.Sood etc. but in fact there was no plot belonging to the seller and the plot which was shown to the complainant was of some other person and this fact came to the notice of the complainant at a later stage only. That it is worthwhile to mention here that after receiving the full and final payment as agreed upon Mr.R.M.Sharma came out with a bundle of papers which were signed by Mr.R.K.Garg R/o H.No.2405, Sector 19, Chandigarh now resident of H.No. 938, Sector 9, Panchkula wherein there was agreement to sell affidavit etc. and vide clause 5, it is mentioned that I have also delivered the actual possession and physical possession of the said residential plot and I have also handed over all the papers relating to the ownership of the said plot to the said purchaser. That the seller Mr.R.K.Garg through Sh.R.M.Sharma and Mr.R.K.Goel have prepared the forged papers viz. GPA, Affidavit, Will, Agreement to sell etc. which was duly witnessed by Sh.S.K.Garg, K.R.Deep and R.M.Sharma. The facts were got verified for the Shivalik Environment Society as the name of persons were got published by the Registrar of Housing Coop, Society, Sector 17, CRM No. M-41475 of 2007 4 Bays Building Chandigarh. That when I have asked the possession of the said plot i.e. 10 Marlas at Mansa Devi Complex, Sector 5, Panchkula, the property dealer Mr.R.M.Sharma, Mr.R.K.Goel have given me the papers above said documents whereas there was no such plot at Mansa Devi Complex for which the agreement was arrived and subsequent payment was made. On our enquiry it was revealed that there was no such plot in the name of Sh.R.K.Garg. Neither he possessed any such plot at Mansa Devi Complex as well as Shivalik Environment Society Ltd. That thereafter the complainant made a request to the said person to either refund the amount or give possession of plot for which the agreement to sell was executed and full and final consideration was paid. But till today neither they have handed over the possession nor given the amount paid by the complainant. The respondents mentioned above are hand in glove in whole of the episode and acted collectively and intentionally. This is also brought to your kind notice that Mr.R.M.Sharma, Prop. of Esserr Property Dealer and part for the whole agreement was booked by Panchkula Police. Similarly, where he has played fraud by selling non-existing plot to a party. These facts can be got verified from the Police Station where the FIR registered against him. (Copy of the Press Clipping in the Tribune Dated 16.7.1998 is enclosed for reference). It is, therefore, respectfully prayed that action may kindly be taken against the said persons either getting my principal amount of Rs.5,25,000/- refunded alongwith interest (at least 18%) for 45 months from 5.9.1995 to CRM No. M-41475 of 2007 5 5.3.1999 (Rs. 3,54,375/-) or getting me physical possession of plot as per terms and conditions of agreements and receipt issued for cash and cheque issued. I shall be highly thankful to you.” Learned counsel for the petitioners has submitted that petitioner-R.K.Garg was allotted membership by Shivalik Environment Cooperative House Building Society (for short`the Society') Saketri. Petitioner-R.K.Garg was allotted 10 marlas plot by the Society and payment of `1,20,000/- was made by him on 3.9.1992. Thereafter, petitioner- R.K.Garg was unable to pay the remaining installments and was left with no alternative but to sell the plot. Petitioner-R.K.Garg entered into an agreement to sell with respondent No.2 on 5.9.1995 qua the sale of 10 marlas plot. The name of respondent No.2 was duly entered in the list of eligible members of the Society. A compromise was effected between petitioners and respondent No.2 on 18.2.2000 and as per the same, respondent No.2 had received a sum of ` 2,20,000/- from the petitioners and had stated that she would not proceed with the complaint lodged by her with the Police. Hence, the FIR in question was liable to be quashed as no offence was made out against the petitioners. Learned counsel for the Administration, on the other hand, has submitted that the petitioners had cheated the complainant and had misappropriated the amount paid by her. In the present case, admittedly-R.K.Garg had agreed to sell his 10 marla plot to respondent No.2 which was allotted to him by the Society. The agreement to sell in question was dated 5.9.1995. At the time of execution of the agreement to sell, respondent No.2 had paid ` 2,20,000/- to petitioner-R.K.Garg towards full and final payment qua the plot in CRM No. M-41475 of 2007 6 question. A perusal of certificate dated 11.1.1996 (Annexure P3) issued by the Society reveals that respondent No.2 was allotted a share in the Society against the full payment. Annexure P4 is the certificate issued by the Inspector cooperative Society dated 22.4.2002 to the effect that respondent No.2 was the member of the Society and was enrolled at serial No. 183 in the final list of members. Annexure P5 is another certificate issued by the Society dated 28.9.2004 whereby the sale of the plot by member R.K.Garg in favour of Krishna Sharma, respondent No.2 was duly recognized. The agreement-cum-compromise deed effected between the parties on 9.2.2000 has been placed on record. A perusal of the same reveals that respondent No.2 had received payment and was entitled to keep the membership of the Society as full and final settlement qua the dispute between the parties. It was further averred therein that the complainant did not want to proceed with the FIR in question as she had received ` 2,20,000/- which had been paid to party no.2 in connection with agreement to sell dated 5.9.1995. Thereafter, an application was moved by respondent No.2 to Superintendent of Police UT Chandigarh stating therein that she had no objection if the FIR in question was filed. She had no grievance against the accused as the amount in question had been received by her and she had also got the membership of the Society. After investigation of the case, cancellation report was submitted by the Investigating Agency. However, when the notice of the same was issued to respondent No.2, she averred that condition No. 3 of compromise had not been acted upon and she wanted the matter to be reinvestigated. Thereafter, the Chief Judicial Magistrate vide order dated 27.2.2001 sent the case for reinvestigation. A perusal of the compromise deed reveals that the amount of sale consideration paid by CRM No. M-41475 of 2007 7 respondent No.2 to the seller has been received back by her. A perusal of the certificate placed on record issued by the Society reveals that respondent No.2 has been made member of the Society as the membership right had been sold by petitioner-R.K.Garg in her favour. A perusal of the reply filed by respondent No.2 reveals that it has been stated therein although a compromise has been effected between the parties but she had received only a sum of ` 2,20,000/-, whereas, an amount of ` 5,25,000/- was paid to the seller. It has been further averred in the reply that the petitioner- R.K.Garg, in fact, did not own any plot. Although in the agreement to sell, the amount paid by respondent No.2 was described as ` 2,20,000/- and receipt was also issued qua the said amount by the seller but the remaining amount was paid to R.K.Garg vide cheque dated 4.9.1995. ` 85,000/- were paid in cash to petitioner-R.K.Garg. Thus, the execution of the compromise between the parties is duly admitted by respondent No.2 in her reply. Respondent No.2 has also admitted the receipt of ` 2,20,000/- from the petitioner. As per the agreement to sell in question, ` 2,20,000/- had been paid by respondent No.2 to the seller. The said amount has been duly returned by the seller to respondent No.2. Respondent No.2 has also been allotted membership of the Society. Since the execution of the compromise has been duly admitted by respondent No.2 in the written statement, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. In case any further amount is due towards respondent No.2 from the petitioners, she could have resorted to civil remedy available to her as per law. The seller has returned the money received from respondent No.2 in terms of the agreement to sell in question. Respondent No.2 has CRM No. M-41475 of 2007 8 also got the membership of the Society. Hence, the ends of justice require that the FIR in question be quashed. Accordingly, this petition is allowed. FIR No.467 dated 28.9.1999 registered under Sections 406/420/467/468/471/120-B I.P.C. at Central, Sector 17,Chandigarh. and all subsequent proceedings arising therefrom are quashed. ( Sabina ) Judge August 26, 2011 arya