Criminal Misc. No. M-16004 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-16004 of 2008 (O&M) Date of decision: September 22,2009 Khushyal @ Kushal Singh .. Petitioner v. State of Haryana and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Raj Mohan Singh, Advocate for the petitioner. Mr. Niraj Bhutani, Assistant Advocate General, Haryana. Mr. Shiv Kumar, Advocate for respondent No. 2. ... Rajesh Bindal J. Prayer in the present petition is for quashing of FIR No. 143 dated 31.3.2007, registered under Sections 420, 406, 467, 468, 471,120-B and 506 of the Indian Penal Code, at Police Station, City Ballabgarh, District Faridabad and all subsequent proceedings arising therefrom. Briefly, the facts are that the petitioner entered into an agreement for sale of agricultural land on 13.4.1998 for Rs. 11,79,375/- and received Rs. 1,20,000/- as earnest money from respondent No. 2. One another agreement was also executed on the same day by the petitioner along with others for sale of agricultural land for a sum of Rs. 15,37,500/- and respondent No. 2 received Rs. 1,55,000/- as earnest money. Third agreement was also entered into by the petitioner for sale of agricultural land for a sum of Rs. 16,00,000/- and earnest money of Rs. 80,000/- was received. The time fixed for execution and registration of the sale deed was fixed up to 31.1.1999. As the the petitioner did not get the sale deeds registered, respondent No. 2 filed a suit for recovery of Rs. 6,00,000/- on 7.2.2004. Along with the suit, application under Order 38 Rule 5 CPC was filed seeking attachment before judgment, in which the learned trial court, vide order dated 10.5.2006, directed the petitioner to furnish security for Rs. Criminal Misc. No. M-16004 of 2008 [2] 6,00,000/- within a period of 15 days, failing which the property detailed in the application was to remain attached till the disposal of the suit. It was made clear that attachment of property was to remain in force till the petitioner furnished the security as required. On 24.5.2006, the petitioner furnished security bonds, which were accepted. On 31.3.2007, the FIR in question was got registered with the allegations that after filing of the suit, on 2.5.2006, the learned trial court had restrained the defendants therein from alienating the suit land. Thereafter, mentioning the factum of passing of the order in application under Order 38 Rule 5 CPC, it was stated that the petitioner having sold the property on 27.7.2006, the offences as alleged in the FIR were committed and the petitioner along with others were liable to be prosecuted. It is the aforesaid FIR, quashing of which is sought in the present petition. Learned counsel for the petitioner submitted that on a plain reading of the FIR, no offence under the Sections, mentioned in the FIR, is made out. The dispute in the present case is entirely civil in nature. Even if it is assumed for arguments' sake that there were agreements to sell entered into between the parties, the admitted case of respondent No. 2-complainant is that it was ultimately culminated into settlement for money and it was only a suit for recovery which was filed by him. Meaning thereby the complainant was no more concerned with the property of the petitioner. The petitioner had, in fact, furnished security in terms of the order passed by the Court in application under Order 38 Rule 5 CPC and the same having been accepted by the court, even if the petitioner had sold the property, there would be no violation of the order of the court as restrain of sale of property was only till such time the security of Rs. 6,00,000/- was furnished. There is no cheating or forging of documents. The allegations made in the FIR being totally misconceived, the petitioner should not be made to suffer the agony of trial for years together and the FIR should be quashed. In response to the contentions of the learned counsel for the petitioner, learned counsel for the complainant submitted that from the very beginning the intention of the petitioner was to cheat the complainant as after executing agreements to sell and taking earnest money, he failed to execute the sale deeds. Consequently, a settlement was arrived at vide which the complainant was entitled to Rs. 6,00,000/-. Even that was not paid and again the complainant was put to loss. He further submitted that in spite of interim stay of sale of property in question granted by the trial court in the suit filed by the complainant on 2.5.2006 in the application filed under Order 39 Rules 1 and 2 CPC, the petitioner had sold the property in question. Hence the offences, as alleged in the Criminal Misc. No. M-16004 of 2008 [3] FIR, are clearly made out. Otherwise, the contentions which are sought to be raised by the petitioner would require leading of evidence which can be gone into by the court below after proper trial. Heard learned counsel for the parties and perused the material on record. The undisputed facts on record are that there were certain alleged agreements to sell signed between the parties. On account of the dispute regarding non-fulfilment thereof, a suit for recovery of Rs. 6,00,000/- was filed by respondent No. 2-complainant against the petitioner and other defendants claiming that dispute was settled in terms of money. In the aforesaid suit, applications under Order 39 Rules 1 and 2 CPC and Order 38 Rule 5 CPC were filed. In the application under Order 39 Rules 1 and 2, the civil court granted interim stay of alienation of property on 2.5.2006, though copy of the order is not on record. The application has not been finally disposed of. However, in the application under Order 38 Rule 5 CPC, the learned civil court vide order dated 10.5.2006, directed the petitioner to furnish security for Rs. 6,00,000/- within a period of 15 days, failing which the property detailed in the application was remain attached till the disposal of the suit. It is after passing of the aforesaid order that the petitioner furnished security bonds to the tune of Rs. 6,00,000/- and consequently the attachment of the property as ordered by the Court on 10.5.2006, stood vacated. However, still as the application under Order 39 Rules 1 and 2 where interim stay of alienation of property was granted had not yet been decided, it is after the passing of order on 24.5.2006 after the petitioner had furnished security bonds of Rs. 6,00,000/- to secure the claim of respondent No.2- complainant in the suit, the petitioner had sold the property on 27.7.2006. In the facts and circumstances of the case, grouse of cheating and dishonestly inducing delivery of property raised by respondent No. 2 is misconceived. It is not that the vendee in the sale deeds of the property is raising a grouse, rather, respondent No. 2, who had only filed a suit for recovery of Rs. 6,00,000/- in which the amount sought to be claimed by respondent No. 2 in the suit has already been secured, has lodged the FIR. In case, respondent No. 2 was of the view that there is any violation of the order passed by the civil court, in any manner, he could have availed of appropriate remedy available to him under the civil law and could not invoke criminal jurisdiction. For the reasons mentioned above, in my considered opinion, continuation of prosecution in the present case would amount to misuse of process of law. Accordingly, the FIR in question and all subsequent proceedings arising therefrom are quashed. Criminal Misc. No. M-16004 of 2008 [4] The petition stands disposed of. (Rajesh Bindal) Judge September 22 ,2009 mk