Crl.Misc.No.M-32081 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on: February 15, 2010. (1) Crl.Misc.No.M-32081 of 2009. Jagir Singh .. Petitioner VERSUS The State of Haryana .. Respondents * * * (2) Crl.Misc.No.M-32288 of 2009. Gurnam Singh .. Petitioner VERSUS The State of Haryana .. Respondents CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI * * * PRESENT Mr.R.K.Handa, Advocate, Mr.Madan Sandhu, Advocate, for the petitioner in Crl.Misc.No.M-32081 of 2009 Mr.Karan Vir Nanda , Advocate, for the petitioner in Crl.Misc.No.M-32288 of 2009 Mr.S.S.Gouripuria, DAG, Haryana. M.M.S. BEDI, J. (ORAL) This order will dispose of the above noted two petitions, one filed by Jagir Singh and another by Gurnam Singh, for . . . 1 Crl.Misc.No.M-32081 of 2009 pre-arrest bail in a case registered at the instance of Sher Singh, alleging that both the petitioners are Property Dealers and that the complainant was interested to purchase some land. Amar Singh and Jasbir Singh introduced the complainant to the petitioners who told the complainant that they intended to sell their land in village Badhour, District Panchkula and that they were owners in possession thereof and as such, an agreement to sell was entered into on 02.03.2007, when a sum of Rs.3 lacs was paid as advance money in cash. Another installment of Rs.1,50,000/- was paid in cash on 05.03.2007 to the petitioners and one Karamjit Singh. The petitioners did not execute the sale deed by 10.07.2007, the date fixed for execution of the sale deed. Thereafter, the complainant was put off on one pretext or another. Ultimately, the complainant came to learn from Tehsil Office Raipur Rani, that the petitioners were not actually the owners of the land which they agreed to sell to complainant Sher Singh. Counsel for the petitioners submit that a complaint under Section 138 of the Negotiable Instruments Act, (for short 'The Act') has been filed by Sher Singh against Gurnam Singh pertaining to a cheque of Rs.7 lacs dated 24.12.2007, which was handed over to Sher Singh for return of the earnest money but the said cheque on presentation was not cleared. Therefore, a complaint has been filed by Sher Singh complainant against Gurnam Singh. A copy of complaint dated 23.01.2008, has been relied upon by the counsel for the petitioners to contend that it is a case of civil liability and that it . . . 2 Crl.Misc.No.M-32081 of 2009 will be a case of double jeopardy in case the criminal proceedings for breach of agreement to sell and for offence under Sections 406 & 420 IPC, are continued. A strong reliance has been placed on the order of pre-arrest bail passed in favour of Amar Singh and Jasbir Singh who have been granted the concession of pre-arrest bail by Additional Sessions Judge, Panchkula. The said two persons had witnessed the agreement of sale. Counsel for petitioner Gurnam Singh has contended that actually Ashwani Sethi being the original owner had entered into an agreement of sale with Gurnam Singh but since Ashwani Sethi did not execute the sale deed on the scheduled date in favour of Gurnam Singh therefore, he was unable to comply with the terms and conditions of the agreement of sale. Reliance has been placed on Sagar Suri Vs.State of U.P., 2000 (1), RCR (Crl.) Page-707, S.C., wherein, in a matter of loan of Rs.50 lacs obtained against cheque, on dishonouring of cheques on presentation, the proceedings under Sections 406 & 420 IPC, were quashed on the ground that bald assertions that the cheques were issued with dishonest intention and misrepresentation were not tenable. Reliance has also been placed on Harinderpal Singh Vs. State of Punjab, 2007 (4) RCR (Crl.), Page-534, to contend that the judgment in Sagar Suri was followed in the said case and FIR was quashed in offence under Sections 406 & 420 IPC on the ground that when a complaint under Section 138 of the Act has been filed, an FIR under Sections 406 & 420 IPC, is not maintainable. . . . 3 Crl.Misc.No.M-32081 of 2009 I have heard the counsel for the petitioners, at length, and gone through the police file to find out if, prima facie, offence under Sections 406 & 420 IPC, is made out against the petitioners. A perusal of the police file indicates that in an agreement of sale executed by the petitioners, it has specifically been mentioned by the petitioners that they are owners of 31 kanals 5 marlas of land mentioned in the agreement of sale and that they had agreed to sell their land for total sale consideration of about Rs.22 lacs. The statements of the witnesses recorded during investigation clearly indicate that the complainant Sher Singh had been persuaded to part with about Rs.7 lacs on representation with a promise that 31 kanals 5 marlas of land owned by the petitioners will be transferred to him. The agreement of sale nowhere mentions condition that Ashwani Sethi being original owner has entered into an agreement of sale with Gurnam Singh. The contents of the agreement of sale which is a documentary evidence, prima facie, satisfy the necessary ingredients of cheating that on the basis of false claim of ownership of 31 kanals 5 marlas of land, the complainant had been persuaded to part with sum of Rs.7 lacs. There is no dispute that money has been obtained by the petitioners on the basis of a false promise that land which is not owned by the petitioners, would be transferred. Such a transaction prima facie tantamount to cheating and it is apparent from the record that from the very beginning the intention of the petitioners had been to cheat . . . 4 Crl.Misc.No.M-32081 of 2009 the complainant. So far as the pendency of complaint under Section 138 of the Act, filed by Sher Singh, against Gurnam Singh is concerned, the said complaint has been filed to exercise a legal right vested under Section 138 of the Act in favour of complainant Sher Singh. It is not always a complete bar that pendency of complaint under Section 138 of the Act, would waive right of the complainant to claim criminal prosecution on the basis of cheating. A clear distinction can be drawn in a case of simple civil liability and a case where the complainant claims that from the very inception the accused had the intention to cheat the complainant. The present case is a glaring example where from the very beginning intention of the petitioners to cheat the complainant is made out. Thus, pendency of proceedings under Section 138 of the Act, will not debar the prosecution under Sections 406 & 420 IPC, and the same cannot be treated as a ground for granting the pre-arrest bail as no extra ordinary exceptional circumstances exist for grant of said relief in the exercise of powers under Section 438 Cr.P.C. The ratio of the rulings cited by the counsel for the petitioners is clearly distinguishable. No ground is made out for grant of pre-arrest bail. Dismissed. (M.M.S.BEDI) JUDGE February 15, 2010. rka . . . 5