Crl. Misc. No.50948 M of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No.50948 M of 2007 Date of decision: 2.9. 2009 Kuldeep Singh ... Petitioner. Versus State of Haryana and another ..... Respondents. CORAM:- HON'BLE MR. JUSTICE K.C. PURI Present: Mr. H.P.Singh, Advocate, for the petitioner. Mr. Vikas Chaudhary, AAG, Haryana. Mr. S.M.Sharma, Advocate for respondent No.2. K.C. PURI, J. This is a petition under Section 482 of the Code of Criminal Procedure (in short – Cr.P.C.) for quashing FIR No.126 dated 18.5.2002 (Annexure P-1)registered under Sections 420 and 406 of the Indian Penal Code (in short – the IPC) at Police Station Mahesh Nagar, District Ambala and charge sheet dated 28.02.2003 (Annexure P-2) being an abuse of the process of the Court. Briefly stated that the complainant now respondent lodged FIR with the allegation that petitioner Kuldeep Singh had Crl. Misc. No.50948 M of 2007 2 offered for sale of his house constructed in area measuring 312 square yard in village Boh Tehsil and District Ambala along with construction. It is alleged that Kuldeep Singh petitioner-accused entered into an agreement regarding sale of his house for a consideration of Rs.4,50,000/- with Kuldeep Singh complainant- respondent on 1.9.2001 at the time of executing the agreement, the complainant had given an amount of Rs.2,00,000/- to the accused as earnest money and it was settled that sale deed will be executed on or before 28.2.2002. On 27.2.2002, the accused contacted the complainant and requested him on account of mishappening in the family he is living for Lucknow and asked the complainant that sale deed would be executed on 15.3.2002 on his return. The accused did not execute the sale deed. Accordingly, the complainant waited for sufficient time and moved an application and affidavit before the Tehsildar and remained present along with the balance sale consideration. Thereafter, the complainant contacted the accused personally but the accused went on putting of the complainant on one pretext or the other. The complainant has come to know that accused has already mortgaged the house on 8.11.2000 in favour of Triloki Nath son of Panna Lal resident of village Boh Tehsil and District Ambala Cantt vide mortgage deed dated 17.5.2002 amounting to Rs.1,30,000/- and in this manner had cheated the complainant. The accused did not execute the sale deed and falsely put off the complainant. The accused/petitioner has pleaded that on 23.7.2002, Crl. Misc. No.50948 M of 2007 3 the complainant filed suit for specific performance. In fact the mortgage of the house which was executed in favour of Tarloki Nath on 8.11.2000 was redeemed on 10.9.2001 by making payment of the mortgage amount to Tarloki Nath much prior to 28.2.2002, the date fixed for the execution of sale deed. Copy of the cancellation of mortgage deed has been appended as Annexures P-6 and P-7. The complainant filed civl suit No.353 dated 21.5.2007 for specific performance of the agreement dated 1.9.2001 and 27.2.2002 in his favour. The learned Court of Additional Civil Judge (Senior Division), Ambala vide order dated 13.12.2008 dismissed the suit for specific performance holding that complainant now respondent is not ready to perform his contract. Learned counsel for the respondents has submitted that charges has been framed and many witnesses have been examined and only few witnesses remain to be examined and as such no ground for quashing is made out. It is not disputed that agreement to sell was executed by the petitioner in favour of Sushil Kumar-respondent on 1.9.2001 and Kuldip Singh received Rs.2,00,000/- as earnest money. The copy of the agreement has been placed on the file in which it is mentioned that sale deed is to be executed by 28.2.2002. The main grievance ventilated by the complainant is that the same was mortgaged with Triloki Nath for Rs.2,00,000/- on 8.11.2000 and 10.1.2001 for consideration of Rs.2,00,000/- and Rs.1,00,000/- but according to the documents Annexures P-6 and P- Crl. Misc. No.50948 M of 2007 4 7, the amount of the mortgage has been paid on 10.2.2001 i.e. much prior to the date of execution of the sale deed. In compliance to the agreement in question. Moreover, one fact which militates against the case of the complainant is that he filed civil suit for specific performance regarding the agreement in question but he remained unsuccessful in that suit. It has been held by the Court that complainant is not ready and willing to perform his part of the contract. No doubt, the appeal is stated to be pending but the fact remains that the matter involved cannot be said to be of a criminal nature in any way. The controversy involved in the present case is civil in nature. The Hon'ble Apex Court in authority Hridaya Ranjan Pd. Verma and others vs. State of Bihar and another 2000(2) RCR (Criminal) 484 and in Inder Mohan Goswami & Another vs. State of Uttaranchal and others 2007(4) RCR (Criminal) 548 held that where there is an agreement to sell the land between the accused and the complainant and accused receiving the earnest money from the complainant. Complainant failed to pay the balance amount despite notice. The accused cancelling sale agreement under notice to the complainant. The accused thereafter selling a part of land to another party. No criminal offence under Sections 420 and 467 IPC is made out. Dispute is of civil nature. Criminal proceedings were quashed. It has been held in that authority that growing tendency in business circles to convert purely simple disputes into criminal case, because civil remedies are time consuming. In those circumstances, Crl. Misc. No.50948 M of 2007 5 it has been held that by invoking the provisions under Section 482 Cr.P.C., proceedings can be quashed. The present case is on better footing as it is nowhere alleged that house in question has been sold by the accused. Having lost in the civil suit, no right has been left with the complainant in respect of the house in question. The learned counsel for the respondent has relied upon Hridaya Ranjan Pd. Verma and others' case (supra) and on the strength of the same, it is submitted that the High Court should be slow in quashing the proceedings in a threshold. I have carefully gone through the said ruling. The said ruling helps the case of the petitioner rather the case of the respondent/complainant. In that authority it has been held that complainant has to show dishonest intention at the time of making the promise to constitute the offence under Sections 415 and 420 IPC. In that authority, the High Court has refused to exercise the jurisdiction under Section 482 Cr.P.C. However, the Apex Court while holding that there is no evidence that the accused has the dishonest intention at the time of making promise and consequently, the criminal proceedings were quashed by the Apex Court. Paragraph 17 of the judgment is reproduced as under : - “Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made Crl. Misc. No.50948 M of 2007 6 out. So far as the offences under Sections 469, 504 and 120-B are concerned even the basic allegations making out a case there under are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana and others v. Bhajan Lal and others 1991(1) RCR (Crl.) 383 (supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that the respondent No.2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that information was not disclosed by the appellants intentionally in order to make the respondent No.2 part with property is not alleged expressly or even impliedly in the complaint. Therefore, the core postulate of dishonest intention in order to deceive the complainant-respondent No.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceedings against the accused will be, in our Crl. Misc. No.50948 M of 2007 7 considered view, an abuse of process of the Court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same.” In the present case also besides the fact that the matter involves is civil in nature and there is nothing on the perusal of the complaint that petitioner/accused has dishonest intention at the time of execution of agreement to sell. The complainant has lost the legal battle before the civil court regarding the same agreement and as such continuation of criminal proceedings regarding the same agreement is merely an abuse of the process of the Court. Petitioner has been able to make out a case to invoke provision under Section 482 Cr.P.C. for quashing of FIR in question. So, in view of the above discussion, the petition stands accepted and FIR No.126 dated 18.5.2002 (Annexure P-1)registered under Sections 420 and 406 of the Indian Penal Code of the IPC at Police Station Mahesh Nagar, District Ambala and charge sheet dated 28.02.2003 (Annexure P-2) stand quashed. Further proceedings in pursuance to the said FIR also stand quashed. 02.09, 2009 (K.C. PURI) sv JUDGE