Crl. Misc. No. M-13031 of 2008 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-13031 of 2008 (O&M) Date of Decision: June 1,2011 Tarsem Chand Jindal and another .................... Petitioners Versus State of Punjab and another ................ Respondents 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: Ms. Pooja Chopra, Advocate for the petitioners. Mr. Munish Kumar, AAG, Punjab, for respondent No.1. Mr. Ashok Jindal, Advocate for respondent No.2. ... RITU BAHRI, J. This petition under Section 482 of the Code of Criminal Procedure is for quashing FIR No. 305 dated 26.12.2007 under Sections 420, 406 IPC registered at Police Station City Mansa. The petitioner is a retired government employee. He married one Nirmala Devi on 9.5.1974. Two children Crl. Misc. No. M-13031 of 2008 (O&M) [ 2 ] were born out of this wedlock, one son and one daughter. On 3.10.1985 their marriage was dissolved by the Court of District & Sessions Judge, Chandigarh. Petitioner No.2- Deepak Jindal is the son of petitioner No.1. Petitioner No.1 and Nirmala Devi were joint owners of a residential house No. 2304, Sector 35-C, Chandigarh, having 50% share each in the said property. After divorce, petitioner No.1 re-married and shifted to Sector 41, Chandigarh. On 8.8.2005 Nirmala Devi executed an agreement to sell in respect of her 50% share in the aforesaid house bearing No.2304, Sector 35-C, Chandigarh in favour of one Vinod Garg s/o Sh. Lal Chand Garg (30% share), Smt. Rajesh Garg w/o Vinod Garg (10% share), both residents of House No.83, Sector 15-A, Chandigarh and her ex-husband i.e. petitioner No.1 (10% share). At the time of execution of the said agreement `12.25 lacs were received as earnest money by Nirmala Devi i.e. `10.25 lacs from Sh. Vinod Garg and his wife Smt. Rajesh Garg in lieu of 40% share in the aforesaid house and ` 2 lacs from petitioner No.1 Tarsem Chand, her ex-husband. Nirmala Devi died on 19.12.2005. The agreement to sell dated 8.8.2005 was cancelled vide another agreement dated 9.5.2006 signed by Vinod Garg, Rajesh Garg and Tarsem Chand, petitioner No.1 and Deepak Jindal, petitioner No.2 as well as his wife Punita Jindal being the legal heirs of Nirmala Devi. This agreement was also signed by the witnesses. As Crl. Misc. No. M-13031 of 2008 (O&M) [ 3 ] per this agreement Vinod Garg as well as Smt. Rajesh Garg received `2.5 lacs from Deepak Jindal, petitioner No.2 and Punita Jindal. Annexure P-3 is the receipt issued by Vinod Garg and Rajesh Garg on receiving a sum of `10.25 lacs. Vinod Garg and his wife Rajesh Garg moved an application to the Estate Officer for cancellation of NOC. Vinod Garg and Rajesh Garg filed a civil suit for declaration at Chandigarh to the effect that they had paid `9 lacs over and above `10.25 lacs to Nirmala Devi as earnest money regarding the agreement to sell dated 8.8.2005. It is alleged that a cheque of ` 9 lacs was issued by petitioner Tarsem Chand Jindal in favour of Vinod Garg and Rajesh Garg on 16.3.2006 from his account at Mansa. This cheque was dishonored and Vinod Garg has filed a complaint under Section 138 of the Negotiable Instruments Act. This complaint is pending in the Courts at Mansa. Vinod Garg has also filed a suit for recovery under Order 37 CPC against petitioner No.1 which is pending in the Civil Courts at Chandigarh. On 28.12.2006, Vinod Garg had filed a criminal complaint before the Senior Superintendent of Police, Chandigarh, alleging fraud against petitioner No.1 Tarsem Chand Jindal and Deepak Jindal, petitioner No.2. On inquiry, it was found that no offence was made out against any of the alleged persons. It has been observed in the inquiry that the complainant had initiated this complaint so that a letter Crl. Misc. No. M-13031 of 2008 (O&M) [ 4 ] of NOC was not issued to the legal heirs of Nirmala Devi. The property has now been transferred in the names of legal heirs of Nirmala Devi and the complainant has filed a civil suit for recovery of the amount of earnest money. FIR No. 305 dated 26.12.2007 under Sections 420, 406 IPC has been filed by Lal Chand, father of Vinod Garg. The petitioners have sought quashing of this FIR on the ground that it is an abuse of process of law. Ms. Pooja Chopra, learned counsel for the petitioners, has vehemently argued that receipt of `10.25 lacs has been admitted in the cancellation agreement dated 9.5.2006. Annexure P-3 is the receipt issued by Vinod Garg and Rajesh Garg receiving a sum of `10.25 lacs at the time of cancellation of agreement. In the cancellation agreement, there is no mention of `9 lacs paid by Nirmala Devi to Rajesh Garg and Vinod Garg over and above `10.25 lacs. In any case, a civil suit for declaration that the above said documents dated 9.5.2006 were got signed from Vinod Garg and Rajesh Garg under misrepresentation and fraud is already pending in the Courts at Chandigarh. The complaint under Section 138 of the Negotiable Instruments Act for dishonor of cheque of `9 lacs is pending at Mansa. Once in the complaint addressed to the Senior Superintendent of Police, Chandigarh, it has been found that no cognizable offence is made out against the Crl. Misc. No. M-13031 of 2008 (O&M) [ 5 ] petitioners, the present FIR on the same facts is liable to be quashed. Ms. Pooja Chopra has placed reliance on Supreme Court judgments in G. Sagar Suri v. State of U.P. 2000 (1) R.C.R. (Criminal) 707 and B.Suresh Yadav v. Sharifa Bee & Another 2007 (4) R.C.R. (Criminal) 870 to contend that there was no intention to cheat the complainant by the petitioners. In the affidavit filed by Amarjeet Singh, Deputy Superintendent of Police, Mansa, it has been mentioned that after the cheque of `9 lacs was dishonored, a prima facie case under Sections 420, 406 IPC was made out against the accused and the FIR No. 305 has been registered on 26.12.2007 and the matter is under investigation. Mr. Ashok Jindal, counsel for respondent No.2, on the other hand has argued that Nirmala Devi had accepted ` 9 lacs at the time of execution of agreemtn of 8.8.2005. This fact was not mentioned in the agreement datd 9.5.2006 vide which the agreement dated 8.8.2005 was cancelled. Annexure R2/1 is the cheque of ` 9 lacs which was issued by Tarsem Jindal to return the earnest money at the time of execution of cancellation of agreement dated 9.5.2006. The proceedings initiated under Section 138 of the Negotiable Instruments Act are not an abuse of process of Court. Heard counsel for the parties. It is not disputed that a complaint under Section 138 of the Negotiable Crl. Misc. No. M-13031 of 2008 (O&M) [ 6 ] Instruments Act for dishonor of the cheque of `9 lacs is pending at Mansa. The ratio of the judgment of Supreme Court in G. Sagar Suri v. State of U.P. 2000 (1) R.C.R. (Criminal) 707 is fully applicable to the facts of this case. The Supreme Court has held that by making an assertion that a cheque was issued with a dishonest intention and misrepresentation, no offence under Section 420/406 IPC is made out. Observations of the Supreme Court in paragraph 14 are as under:- “14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. In the instant criminal case without regard to their role or participation in the alleged offences with a sole of purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the Crl. Misc. No. M-13031 of 2008 (O&M) [ 7 ] complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do.” In B. Suresh Yadav v. Sharifa Bee & Another 2007 (4) R.C.R. (Criminal) 870 the Supreme Court while examining a case under Sections 415 & 420 IPC has laid down the ingredients of cheating. The complainant is required to show that the accused is fraudulent and has dishonest intention right from the beginning. In paragraph 13 the observation of the Supreme Court is as under:- “For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do no, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have Crl. Misc. No. M-13031 of 2008 (O&M) [ 8 ] been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so.” After accepting the earnest money in pursuance to agreement to sell if the seller makes an agreement to sell with another party, no criminal offence under Section 420/467 IPC is made out. The dispute is purely civil in nature. The Supreme Court in Inder Mohan Goswami & Another v. State of Uttaranchal & Others 2007 (4) R.C.R. (Criminal) 548 has propounded the principles to separate disputes of civil nature and criminal proceedings arising out of the agreements to sell. Since a civil suit for declaration that the documents dated 9.5.2006 were got signed from Vinod Gard as well as Smt. Rajesh Garg under misrepresentation is pending at the Courts at Chandigarh and a complaint under Section 138 of the Negotiable Instruments Act for dishonor of the cheque of `9 lacs is Crl. Misc. No. M-13031 of 2008 (O&M) [ 9 ] pending at Mansa the proceedings initiated in the present FIR on the same facts is an abuse of process of Court. In State of Haryana v. Bhajan Lal 1991 (1) RCR (Criminal) 383 this Court in the backdrop of interpretation of various provisions of Criminal Procedure Code has laid down principles of law relating to exercise of power under Section 482 Cr.P.C. to prevent the abuse of process of court or to secure the ends of justice. The parameters laid down are as under:- “(1) Where the allegations made in the first information report or the complaint, 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 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 not disclose the commission of any offence and make out a case Crl. Misc. No. M-13031 of 2008 (O&M) [ 10 ] 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 a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurt 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 a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Crl. Misc. No. M-13031 of 2008 (O&M) [ 11 ] accused and with a view to spite him due to private and personal grudge.” The present case falls in the parameters set out in the case of Bhajan Lal's case (supra). In view of the Supreme Court judgments, the dispute is purely civil in nature and no offence under Section 420 IPC is made out. The proceedings initiated under Section 420/406 IPC are mainfestly attended with mala fide and the allegations do not constitute a cognizable offence and does not disclose the commission of any offence against the accused. The FIR No. 305 dated 26.12.2007 under Sections 420, 406 IPC registered at Police Station City Mansa is quashed with all consequential proceedings. The criminal miscellaneous is allowed. 1.6.2011 ( RITU BAHRI ) Rupi JUDGE