Crl. Misc. No. M-19839 of 2009 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-19839 of 2009 Date of Decision: January 14,2011 Balwinder Singh and another .............................. Petitioners Versus Ramji Lal ............................................................ Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr.Sanjiv Gupta, Advocate for the petitioners. Mr. Rakesh Nagpal, Advocate for the respondent. ... RITU BAHRI, J. This petition under Section 482 Cr.P.C. is for quashing the complaint for the offences under Sections 420, 467, 468, 471, 506, 34 IPC Police Station City Sirsa (Annexure P-3) along with summoning order dated 28.2.2009 (Annexure P-4). Brief facts of the case are that a civil suit was filed by the petitioners for specific performance of contract on the basis of agreement dated 18.6.2004 with respect to land measuring 54 kanals 05 marlas. The specific case of the petitioners was that Ramji Lal (herein complainant) was owner of the land and he entered into an agreement with the petitioners and when he did not abide by the terms and conditions, after issuance of notice, the petitioner filed the civil suit. Written statement was filed by Ramji Lal Crl. Misc. No. M-19839 of 2009 [ 2 ] and plea was raised that he did not enter into any agreement, as alleged. Even there is no agreement and the same is result of fraud and impersonation as well as concealment of facts. The respondent claimant filed a complaint under Sections 420, 467, 468, 471, 506, 34 IPC, Police Station City, Sirsa. It was asserted that the petitioners committed fraud. After recording preliminary evidence the petitioners were ordered to be summoned by the Chief Judicial Magistrate vide order dated 28.2.2009. In the summoning order, it has been observed that the witness to the agreement has given his affidavit that the alleged agreement does not bear his signatures and it is forged. Signatures of Kunta Devi, daughter of the complainant, and Smt. Parmeshwari Devi, wife of the complainant, have also been forged. After comparing the signatures by Shri Shamsher Singh, Handwriting Expert, he has reported that the alleged agreement does not bear the signatures of the complainant. The total land in the agreement to sell comes to 54 kanals 05 marlas. The respondents have filed their reply to the above petition. It is submitted that the complainant came to know about the agreement to sell when the civil suit was filed by the petitioners. Immediately a complaint was filed on 7.3.2008 before the Chief Judicial Magistrate, Sirsa. This complaint was marked under Section 202 Cr.P.C. to the concerned police station. After due enquiry and after recording the statements, it has been reported that the respondent had never entered into any agreement with regard to land measuring 54 kanals 05 marlas with Balwinder Singh and Jaswant Singh. The agreement is fabricated to grab the land of the answering respondent. Affidavit of the witness to the sale Jangir Singh is Annexure R-1/2 in which he states that his signatures in the agreement are Crl. Misc. No. M-19839 of 2009 [ 3 ] also forged. The Handwriting Expert has also expressed the similar view. Heard learned counsel for the parties. Mr. Sanjiv Gupta, learned counsel for the petitioners, has relied upon the judgments of the Supreme Court in Ram Biraji Devi and Another v. Umesh Kumar Singh and Another 2006 (3) R.C.R. (Criminal) 308, Inder Mohan Goswami & Another v. State of Uttaranchal & Others 2007 (4) R.C.R. (Criminal) 548 and State of Maharashtra v. Sayed Mohammed Masood & Another 2010 (1) R.C.R. (Criminal) 177 to contend that in a dispute of civil nature, criminal proceedings cannot run side by side. Every breach of contract would not give rise to an offence of cheating. Non execution of an agreement to sell would be a case of civil liability. A criminal complaint is not maintainable. Mr. Rakesh Nagpal, learned counsel for the respondent, on the other hand states that in the present case the above cited judgments by the petitioner can be distinguished on facts. In the above cases there was a breach of performance of a contract and the Court had come to the conclusion that no offence under Section 420 IPC was made out. In Sayed Mohammed Masood's case (supra) the Supreme Court has observed that in cases where deception played at the very inception, a case of fraud under Section 420 IPC can be made out. Observation of the Supreme Court in paragraph 10 is as under:- “Drawing our attention to the definition of `cheating' as contained in Section 415 of the Indian Penal Code, the learned counsel would contend that neither there was any inducement nor deception having been made and pursuant to the agreement no property having been delivered in favour of the Crl. Misc. No. M-19839 of 2009 [ 4 ] accused by the complainant nor there was any act of omission on his part which caused or likely to cause any damage to the property, the question of commission of any offence under Section 420 of the Indian Penal Code does not arise.” In the present case, after preliminary enquiry and recording of evidence, it has been reported that the signatures on the agreement to sell were forged. Affidavit of one of the witness Jangir Singh is on record where he has denied his signatures as witness on agreement to sell. This is not a case of breach of contract rather it is a case of fraud where the complainant party was not even aware about the contract of sale of 54 kanals 05 marls of land. Mr. Rakesh Nagpal, on the other hand, has placed reliance on the Supreme Court judgment in N.Devindrappa v. State of Karnataka 2007 (3) R.C.R. (Criminal) 70 in which it has been held that an act can result in both civil and criminal liability. The accused got an advance of `2,000/- to sell a plot of which he was not the owner. It is cheating and the conviction under Section 420 IPC has been upheld by the Supreme Court. Learned counsel for the respondent has informed the Court that in the trial the next date of hearing is 4.2.2011. The petitioner has not joined and appeared before the Court so far. In view of the above, the Criminal Miscellaneous is dismissed. However, the petitioner is granted liberty to appear before the trial Court on 4.2.2011 and make an appropriate application for bail. The application for bail, if made, will be considered by the trial Court on 4.2.2011 as per law. 14.1.2011 ( RITU BAHRI ) Rupi JUDGE