IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No.38892 -M of 2007 DATE OF DECISION : MAY 04, 2010 MR. JAGDISH KUMAR SONI ....... PETITIONER(S) VERSUS THE STATE OF HARYANA & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Gaurav Chopra, Advocate, for the petitioner(s). Mr. Gaurav Dhir, DAG, Haryana. AJAI LAMBA, J. (Oral) This petition under Section 482, Code of Criminal Procedure, has been filed for quashing of case FIR No.823 dated 15.12.2005 under Sections 406, 420, Indian Penal Code, Police Station, DLF, Gurgaon. The petition also prays for quashing of challan/final report under Section 173, Code of Criminal Procedure, and subsequent proceedings. The gist of the matter is that petitioner-Jagdish Kumar Soni was owner of farm land measuring 2 acres located in Gwal Pahari. It remains the admitted position that the petitioner executed an agreement to Criminal Misc. No.38892 -M of 2007 2 sell on 12.5.1995 with Ashok Kumar Chawla, respondent No.2/complainant. It is further the admitted case that the possession of the land was transferred to Ashok Kumar Chawla. General Power of Attorney, Special Power of Attorney, Will and an affidavit were also executed, indicating sale and transfer of land to Ashok Kumar Chawla. As per the FIR case, the petitioner having an intention to cheat Ashok Kumar Chawla, sold the land on 25.1.2005 to one Rakesh Verma, vide a registered sale deed. Rakesh Verma further sold the land to one Ms.Sutapa Lamba on 28.10.2005, again, by way of a registered sale deed. In the FIR, Ashok Kumar Chawla has alleged that the agreement to sell, General Power of Attorney, Special Power of Attorney and Will were executed by the petitioner, indicating the transfer of land in favour of Ashok Kumar Chawla. An income tax case had been initiated against Ashok Kumar Chawla, for which reason the sale deed could not be executed. It is the asserted fact that Ashok Kumar Chawla remains in possession of the land. It has been alleged that the petitioner sold the land to Rakesh Verma with an intention to commit the offence of cheating. During the period when the petition was pending, charges have been framed on 11.1.2008. The matter is at the stage of prosecution evidence. Learned counsel for the petitioner contends that the civil court is seized of the matter and no relief has been granted to Ashok Kumar Chawla. Ashok Kumar Chawla does not even pray for specific performance of the agreement and, therefore, the FIR and subsequent Criminal Misc. No.38892 -M of 2007 3 proceedings be quashed. I have considered the contention of the learned counsel for the parties. It is the admitted fact that the petitioner entered into an agreement to sell on 12.5.1995. In evidence of the fact that the petitioner sold the land to Ashok Kumar Chawla, the petitioner even executed General Power of Attorney, Special Power of Attorney, Will and an affidavit in favour of Ashok Kumar Chawla. Possession of land was also transferred in favour of Ashok Kumar Chawla. The facts have been endorsed by the Investigating Agency by way of comparison of signatures on the General Power of Attorney. It is a matter of record that the petitioner sold the land to Rakesh Verma by way of registered sale deed dated 21.1.2005. The land was further sold to Ms. Sutapa Lamba on 28.10.2005. Be that as it may, it is not the case of the petitioner that the agreement to sell was ever cancelled or any notice in that regard was given to Ashok Kumar Chawla. Prima facie, the facts brought to the notice of the court make it evident that the FIR and consequent proceedings cannot be quashed. Evidence cannot be taken by way of affidavit to record a finding that the facts asserted by the petitioner are proved and the facts asserted on behalf of the complainant and Investigating Agency are disproved. In such circumstances, no ground for interference, while exercising jurisdiction under Section 482, Code of Criminal Procedure, is made out. Denial of relief to the complainant by the civil court, per se, would not invite a conclusion that an offence has not been committed, Criminal Misc. No.38892 -M of 2007 4 considering the facts and circumstances that have emerged after conclusion of investigation. Likewise, the failure on the part of the complainant to file a suit for specific performance of agreement dated 12.5.1995 would not be a circumstance sufficient to conclude that the petitioner has not committed any offence. This is particularly so when the petitioner did not cancel the power of attorneys and the Will. Prima facie case is required to be seen at this stage. The facts, prima facie, show that the petitioner transferred the land by way of transfer of possession, execution of Will, General Power of Attorney, Special Power of Attorney and agreement to sell, and yet without cancellation of these documents, sold the land to Rakesh Verma. Charges have already been framed. The trial court is seized of the matter and would take evidence and record findings on conclusion of the trial. All the issues raised in this petition can be raised before the trial court. No ground for quashing of FIR and consequent proceedings is made out. The petition is dismissed. May 04, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest?