Criminal Misc. No. 61964-M of 2005 -1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 61964-M of 2005 Date of Decision: 09.05.2008 Ashok Nayyar and others ...Petitioners Versus Minoo Komal and another ... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. M.S.Bedi, Advocate, for the petitioner. Mr. I.K.Mehta, Sr. Advocate, with Mr. M.S.Kohli, Advocate, for respondent No. 1. Mr. Navneet Singh, AAG, Haryana. *** Rajesh Bindal, J. 1. The prayer in the present petition is for quashing of complaint case No. 101 of 2004 tilted as Minoo Komal vs. Praveen Ahuja and others under Sections 420/427/467/468/406/120-B I.P.C. (Annexure P-1) and the summoning order under Sections 420/120-B I.P.C. dated 09.08.2005 (Annexure P-2). 2. Briefly the facts of the case are that respondent No.1 had executed a General Power of Attorney in favour of one Praveen Ahuja son of Late Sh. D.R.Ahuja authorising him to enter into an agreement to sell the entire first and second floor with roof right of House No. L-19/18, DLF Qutab Enclave Complex, Phase-II, Gurgaon. In exercise of authority delegated to him, Praveen Ahuja executed sale deed in favour of petitioner No. 3 for the entire first floor, having covered area of 1600 sq. feet (Approx.) for a sum of Rs. 8,50,000/- on March 21, 2002. Second floor of Criminal Misc. No. 61964-M of 2005 -2 the house covering about 1100 sq. feet was sold to petitioner No. 2 for a sum of Rs. 8,00,000/- vide sale deed executed on March 22, 2002. Physical possession of the respective floors was also delivered to the vendees. As there was some alleged breach of contract between respondent No. 1 and Praveen Ahuja, a complaint under Sections 420/427/467/468/406/120-B I.P.C. was filed impleading the petitioners along with Praveen Ahuja. The petitioners came to know about the same when they received summons. It is at this stage that the petitioners have approached this Court for quashing of the complaint and the summoning order. 3. Learned counsel for the petitioners submitted that the filing of the complaint against the petitioners as well as the summoning order passed by the learned court below are totally misuse of process of law. The petitioners are bona fide purchasers of the property from the lawfully constituted attorney of the respondent No. 1/complainant. The fact that he executed a power of attorney in favour of Praveen Ahuja authorising him to deal with first and second floor of the property is even admitted by respondent No. 1/complainant in the complaint filed by him. The petitioners have paid due consideration for the purchase of the property. In any case if the offence of cheating can be alleged, the same can be only against Praveen Ahuja. The petitioner No. 1 is not at all concerned with the deal as he is not even beneficiary in the sale. The arbitration proceedings were initiated by respondent No. 1/complainant against Praveen Ahuja. In any case, the dispute in the present case, even if taken to be on its face value is civil in nature as it is at the most breach of contract between respondent No. 1/complainant and Praveen Ahuja, his attorney. Criminal process could not be set into motion for settlement of civil dispute. Reliance has been placed upon Anil Mahajan vs. Bhor Inudstries Ltd. and another 2006 (4) RCR (Criminal) 834 (SC); Inder Mohan Goswami and another vs. State of Uttaranchal and others 2007 (4) RCR (Criminal) 548 (SC); Harpreet Kaur vs. State of Punjab and another 2006 (2) RCR (Criminal) 287 (P&H) and Uma Shankar Gopalika vs. State of Bihar and another (2005) 10 SCC 336. 4. Learned counsel appearing for the respondent No. 1/complainant submitted that he is the owner of the plot in question. Collaboration agreement was entered into between respondent No. 1 and Criminal Misc. No. 61964-M of 2005 -3 Praveen Ahuja, on June 30, 2001, who is engaged in construction business. In terms of the collaboration agreement, Praveen Ahuja was to construct the building over the plot owned by the complainant. The entire basement, ground floor and space for installation of antenia on the terrace was to be handed over to the complainant after completion and the first and second floor was at the disposal of Praveen Ahuja. It was further agreed upon by Praveen Ahuja that he was to firstly hand over the possession of basement and ground floor to the complainant and thereafter he will hand over the possession of first and second floor to any intending purchaser. Time schedule for construction of the building was also fixed as nine months from the date of delivery of possession. Damages for delay were also mentioned in the collaboration agreement. It was further mentioned that in case of non-completion of the construction within the stipulated period, the complainant was at liberty to complete the same at his own cost and the amount so spent by him was recoverable from Praveen Ahuja as per the rates fixed in the collaboration agreement. The complaint was filed as without fulfilling the conditions, as agreed upon in the collaboration agreement, Praveen Ahuja sold the first and the second floor of the building before even completion thereof and handed over the possession also to the buyers thereof. The same was in connivance with the buyers as the buyers of the first and second floor are related to Praveen Ahuja. The contention is that the intention of Praveen Ahuja from the very beginning was to cheat the complainant as before even completion of the building and handing over the possession of basement and ground floor to the complainant, as per the terms of the agreement, the rights of first and second floor were sold and even the possession thereof was handed over. 5. A plain reading of the complaint clearly makes out a case of cheating against the petitioners as they connived with Praveen Ahuja being their relation. Immediately after filing of the complaint by respondent No. 1 on 08.04.2004, Praveen Ahuja filed a civil suit against petitioners No. 2 and 3 praying for declaration to the effect that the sale deed executed for first and second floor in their favour is illegal and void. The petitioners have merely been summoned. The court has to appreciate the facts pleaded before it. The petition should not be entertained at this stage as it would be appropriate in the facts and circumstances of the present case to permit Criminal Misc. No. 61964-M of 2005 -4 the trial to continue and let the court decide the same on appreciation of the evidence to be led by the parties. He further submits that civil as well as criminal proceedings both can continue together and there is no specific bar as such in case an offence triable under I.P.C. is made out. Reliance has been placed upon K.G.Premshanker vs. Inspector of Police and another JT 2002 (7) SC 30, U.P. Pollution Control Board vs. M/s Mohan Meakins Ltd. and others JT 2000 (3) SC 466, D. Kaur vs. Kanti Khare AIR 1982 SC 784 (1), State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 and Indian Oil Corpn. v. NEPC India Ltd. and others (2006) 6 SCC 736. 6. I have heard learned counsel for the parties and with their assistance perused the paper book. 7. Petitioner No. 1 in the present case is not the beneficiary of the sale deed registered by Praveen Ahuja, attorney of respondent No. 1/complainant. First and second floor of the property had been sold to petitioner No. 3 and 2 respectively. It is not in dispute that the power of attorney was executed by respondent No. 1/complainant in favour of Praveen Ahuja permitting him to deal with the first and second floor of the property. The relevant paras of the General Power of Attorney are extracted below:- “2. To make any correspondence with M/s DLF UNIVERSAL LTD: or any other concerned authority for the transfer of the above portion i.e. entire first floor and second floor with roof rights in the name of any other persons and to get the physical possession of the same from DLF Universal Ltd. 3. To enter into an Agreement for sale with intending purchasers to receive the advance/earnest money and to issue the receipts for the same. 4. To get the sale deed executed and get it registered before the concerned Sub-Registrar and to receive the sale consideration in full and final.” 8. The General Power of Attorney is duly registered before the Sub-Registrar, New Delhi. It is on the basis of this that Praveen Ahuja executed the sale deed in favour of petitioners No. 2 and 3. Collaboration Agreement entered into between respondent No. 1/complainant and Criminal Misc. No. 61964-M of 2005 -5 Praveen Ahuja has not been placed on record. However, the terms thereof have been referred to by respondent No. 1/complainant in the complaint filed, the quashing of which is sought in the present petition. The relevant paras thereof are extracted below:- “6. That vide clause of the agreement the accused Mr. Parveen Ahuja bound himself to construct on the plot within 10 days of the sanction of the plans or handing over the possession by complainant which ever is later and shall complete the construction within 09 months from the said date. The accused Praveen Ahuja also bound that without completion of the ground floor and basement pertains to the share of the complainant, he shall not offer possession or sell the first floor and second floor to the intending purchaser. He has also bound to provide all basic amenities like Water, Electricity etc. to the complainant. In case, the accused is failed to complete the construction within the stipulated period, he shall be liable to pay damages of Rs. 25000/- per month up to six months and in case of default to complete the construction within 15 months from the date of possession, the complainant shall be at liberty to complete the construction and finishing with his own funds and resources and occupy the building and recover the funds from the accused. The outstanding amount of agreement, losses and damages are as under:- i) Amount of Agreement Rs. 50,000/- ii) Amount of Liability for non Rs. 1,50,000/- completion of construction after 9 months upto 15 months as stood as 30.09.2002 iii) Damages up to 30.5.2002 @ 40,000 per month rental value of the ground floor and basement. Rs. 3,20,000/- iv) Damages and cost and pending construction work of Ground Floor and basement pertains to the complainant/owner Rs. 10,00,000/- Total Rs. 15.20.000/- Criminal Misc. No. 61964-M of 2005 -6 8. That in complete contravention of the agreement dated 30.6.2001 the accused No. 1 has not completed the construction of the building and within stipulated period as envisaged in the above agreement. He has execute the sale instruments illegally and unlawfully and also handed over the possession of the building in question first floor and second floor without getting it completed as per Collaboration Agreement, to which the complainant has suffered a great loss and injury and damages for Rs. 15.20,000/- as above and also suffered a loss of compound interest thereon. The accused Mr. Parveen Ahuja in collusion with his associates (buyers) accused No. 2 to 4 forged and fabricated the sale deeds in their favour in complete contravention of the agreement dated 30.6.2001. He has registered the said Vasika before the Sub Registrar, Gurgaon vide Vasika No. 16719 dated 30.6.2002 and 16770 dated 22.3.2002 in which the accused Mr. Parveen Ahuja showing parted/delivered the possession of the first floor and the second floor of the building fraudulently without any authority and unlawfully.” 9. A bare perusal of the collaboration agreement shows that though there is a specific provision regarding delivery of possession to respondent No. 1, first after completion of the building and then only the possession of the first and second floor could be handed over to intending purchaser but the terms thereof specifically make provision for the eventualities such as delay in completion of construction and non- completion thereof as the period of 9 months for completion of construction was fixed in the collaboration agreement. It is specifically provided that in case of delay, Praveen Ahuja shall be liable to pay damages of a sum of Rs. 25,000/- per month up to 6 months and in case of default to complete the construction within a period of 15 months from the date of possession (9 months permitted period and 6 months permitted default period), the complainant was at liberty to complete the construction with his own funds and resources and occupy the building and recover the amount from Praveen Ahuja. Other allegations in the complaint against the petitioners are totally vague. They were not party in the collaboration agreement from which it could be assumed that they were in knowledge of the fact that they Criminal Misc. No. 61964-M of 2005 -7 could be delivered the possession of the first and second floor purchased by them only after the possession of basement and ground floor was handed over to respondent No. 1/complainant. In the power of attorney executed by respondent No. 1/complainant, there is no reference to the collaboration agreement entered into between the parties. Even in the petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 by respondent No. 1/complainant for appointment of Arbitrator the petitioners have merely been shown as proforma respondents. From the facts of the case on record, fraudulent and dishonest intention on the part of the petitioners cannot be inferred from the very beginning. 10. In view of my above discussion, I find merit in the present petition. Once respondent No. 1/complainant had entered into collaboration agreement with Praveen Ahuja with open eyes and taking care of all the eventualities and even specifying damages to be recovered from him and the factum of the collaboration agreement having not been mentioned in the General Power of Attorney executed in favour of Praveen Ahuja and the petitioners being bona fide purchasers of the property, no offence is made out against them to proceed with under Section 420 read with Section 120-B I.P.C. for which they have been summoned by the court below. 11. Accordingly, the complaint and the subsequent proceedings against the petitioners, are quashed. However, it is made clear that nothing said above should be considered as an expression of opinion as far as allegations against Praveen Ahuja is concerned. His case shall be considered by the court below on its own merits. ( RAJESH BINDAL) May 09,2008 JUDGE pj Criminal Misc. No. 61964-M of 2005 -8