Crl.Misc.M-24093 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No. M-24093 of 2008 Date of decision:25.9.2009 R.K.Mishra and another ... Petitioners versus Kharati Ram ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.O.P.Goyal, Sr.Advocate, with Mr.Varun Sharma, Advocate, for the petitioners. Mr.Navin Mahajan, Advocate, for the respondent. ... JORA SINGH, J. R.K. Mishra, Member Management, and others filed this petition under Section 482 Cr.P.C. for quashing of complaint dated 4.8.2004 (Annexure P-11) and summoning order dated 7.7.2007 (Annexure P-14). Kharaiti Ram filed application under Sections 420/464/467/468/34/120-B IPC against R.K.Mishra and another, on the allegations that there was an advertisement in the Punjab Keshri, Jalandhar, dated 16.2.2004 by Sh. R.K.Mishra for the sale of 19 marlas of land of Cooperative Society owned by Dhariwal Woolen Mills. Bids were invited and Dhariwal Woolen Mills also issued a pamphlet in this connection, costing Rs.2,000/- each. The property to be sold was shown at page 35 of the pamphlet. Area of Cooperative Society was mentioned as 5168 sq. feet (19 marlas). Terms and conditions for the sale of the land were mentioned at page 15. The bidders were allowed to inspect the property from 25.2.2004 to 9.3.2004. Satish Kumar son of the complainant was interested in the land and had sent his bid to the British India Corporation, Dhariwal. Crl.Misc.M-24093 of 2008 2 Property was inspected in March, 2004, where wooden furniture etc. was lying. The property was lying furnished. British India Corporation, Dhariwal, assured that furniture etc. will go with the land since the auction is on the basis of `as is where is’. Accused No.2 is the General Manager of the Mills. Satish Kumar was the highest bidder. Sale deed was registered on behalf of the Corporation on 1.7.2004. When Satish Kumar and the complainant got copy of the sale deed and read the same on 8.7.2004, then they came to know that the area mentioned in the sale deed was only 5103 sq. feet (18.75 marlas and not 19 marlas). On 9.7.2004, Satish Kumar had contacted the accused in the premises of the Corporation and asked them as to why the area is not in accordance with the advertisement. Then in the presence of the complainant, R.K.Mishra had made certain cuttings in the original documents. Cuttings were not shown to the complainant. Accused J.K.Mohala replied that the cuttings were necessary. Satish Kumar was abused by the accused. After preliminary evidence and statements of complainant Kharaiti Ram ( Annexure P-12) and Satish Kumar (Annexure P-13), summoning order dated 7.7.2007 (Annexure P-14) was passed. The accused were summoned to face trial under Section 420 IPC. Notice of motion was issued to the respondent. Respondents appeared through counsel. I have heard learned counsel for the petitioners and respondent and have gone through the file. Learned counsel for the petitioners argued that there was an advertisement in the news paper on 16.2.2004. 17 properties, including the property at Sr.No.13, were to be sold on behalf of British India Corporation Crl.Misc.M-24093 of 2008 3 Ltd. Annexure P-1 is the copy of the advertisement. As per advertisement, interested parties had sent a demand draft of Rs.2000/- each drawn in favour of British India Corporation Ltd. Bids were to be deposited upto 5.00 PM on 6.3.2004 and were to be opened at 5.30 PM before the bidders. Bid was approved by the Assets Sale Committee on 7.4.2004. Satish Kumar had entered into an agreement to sell with British India Corporation Ltd. on 13.5.2004. Annexure P-3 is the copy of agreement to sell. Agreement was not signed by petitioner No.1, but was signed by Satish Kumar and petitioner No.2 and other employees of the Corporation. Satish Kumar had agreed to purchase 18.76 marlas of land vide the agreement. Sale deed was executed. Annexure P-4 is the copy of sale deed. In fact, Kharaiti Ram is Ex-dismissed employee of the British India Corporation Ltd. Services of the respondent were terminated on 21.11.1985. He had litigation with the Corporation. Claim of the respondent was dismissed by the Labour Court vide order dated 20.11.2002. Annexure P-5 is the copy of the order dated 20.11.2002. While in service, Kharaiti Ram, respondent, was running a parallel business. Application for registration was moved by the respondent to carry on the business in the name of Dhariwal Woolen Textile Mills. Application was accepted by the Registrar of Trade Mark. Order of registration was challenged by the Corporation. Hon’ble Delhi High Court vide order dated 22.12.1999 (Annexure P-6) had accepted the contention of the Corporation. The respondent was trying to counterfeit the trade mark of British India Corporation Ltd. from time to time and he had undertaken to the effect that no duplicate loies are to be sold by him, but he did not stop it. Then a civil suit was filed against him for restraining from manufacturing, selling and offering for sale directly or indirectly dealing in Crl.Misc.M-24093 of 2008 4 blankets, shawls, loies etc. Contention of the Corporation was accepted by the Delhi High Court vide order dated 26.8.2002 (Annexure P-7). The Corporation had filed another civil suit for permanent injunction against Kharaiti Ram and others restraining them from infringing their trade mark. Suit filed by the Corporation against Kharaiti Ram and others was decreed vide judgment dated 29.5.2003 (Annexure P-8). Kharaiti Ram filed complaint under Sections 500/504/506/34 IPC (Annexure P-9), but the same was dismissed on 20.8.2004 (Annexure P-9). Kharaiti Ram field another complaint under Sections 500/34 IPC against petitioner No.2, but the same was withdrawn vide order dated 14.7.2007 (Annexure P-10). Kharaiti Ram filed yet another complaint, i.e., the present one (Annexure P-11) simply to harass the Corporation. The land sought to be purchased was inspected. Possession was delivered on receipt of full and final payment. No evidence on the file that any of the petitioners was found stealing any article lying in the premises. As per allegations in the complaint, no offence is made out. Simply to harass the Corporation, the complaint was instituted. Learned counsel for the respondent argued that as per advertisement, 19 marlas of land was to be sold, but the area at the spot was found to be less than 19 marlas. Sale deed was executed qua the land measuring 18.76 marlas. Furniture was lying at the spot. The site going to be sold was well furnished, but the articles lying in the disputed property were removed. When 19 marlas of land was to be sold and the sale deed was qua the land measuring 18.76 marlas, then from the very beginning, Crl.Misc.M-24093 of 2008 5 intention of the petitioners was dishonest. Without evidence, the complaint cannot be disposed of. There is mixed question of law and facts. Submissions of learned counsel for the petitioners seem to be reasonable one. As per story, there was an advertisement in the news paper and as per advertisement, bids were to be deposited upto 5.00 PM on 6.3.2004 and at 5.30 PM, the bids were to be opened in the presence of the bidders. Evidence shows that before submitting bids, property was shown and this fact is clear from the statements of Satish Kumar and respondent Kharaiti Ram. Respondent appeared as his own witness before summoning the petitioners. Annexure P-12 is the copy of the statement of Kharaiti Ram. Kharaiti Ram stated that his son Satish Kumar had inspected the site. Satish Kumar was the highest bidder. Satish Kumar also appeared in Court and stated that he had inspected the site. Registered sale deed was executed in his favor on 1.7.2004. Copy of registered sale deed was received on 8.7.2004. He further stated that when they had gone to take possession, they noticed that some labourers were removing articles in the presence of the petitioners. No allegation of the respondent that the petitioners were removing the articles. The respondent also stated in his statement (Annexure P-12) that when he had gone to take possession with his son, then some labourers were found removing the articles on a rehra in the presence of the petitioners. As per clause 4 of the bidding process (Annexure P-2), conveyance deed and possession are to be delivered only on receipt of full and final payment for the property. In the present case, highest bidder had made full and final payment. Conveyance deed was singed by the petitioners, but at the time of signing the conveyance deed or making the payment, no objection that, in fact, 19 marlas of land was to be Crl.Misc.M-24093 of 2008 6 sold, whereas the sale deed was qua 18.76 marlas only. No objection was raised that some articles were removed when the possession was given. As per clause 13 of the bidding process (Annexure P-2), property was to be sold `as is where is’ basis, but when there was full payment, then no objection regarding removing of any article. When conveyance deed was signed, at that time also, no objection by the respondent. When the possession was delivered, again no objection. No document is on the file to show that some furniture was lying in the premises or the property going to be sold was well furnished. Property was to be inspected between 25.2.2004 to 9.3.2004, whereas the complaint is dated 4.8.2004. In fact, the respondent is an ex-employee of the Corporation. Earlier, there was civil/criminal litigation amongst the parties. The respondent had lost legal battle. The respondent with ulterior motive filed present complaint against the employees of the Corporation. Taking the complaint to be correct one, without any omission or addition, no prima facie case is made out to summon the petitioners. In case, the property going to be sold was 19 marlas and the sale deed was qua 18.76 marlas, then there was a separate remedy. Firstly, there was no furniture lying at the spot. Property was not well furnished. As per story, only the petitioners were present. The complaint is silent as to which articles were stolen and at what time and on which date. The labourers, who were actually removing the furniture etc., were not impleaded as the accused with the petitioners. Simply the petitioners were impleaded because there was earlier litigation with the Corporation. When the complaint is filed with ulterior motive and no particular date and time, when the offence was committed, have been given, Crl.Misc.M-24093 of 2008 7 then it is very easy to harass the opposite party by producing interested witness, i.e., Satish Kumar son of Khairati Ram. In the light of above discussion, I am of the opinion that no prima facie case is made out to summon the petitioners under any Section of IPC. The complaint against the officials of the Corporation is an abuse of process of law. Hence, complaint dated 4.8.2004 (Annexure P-11) and summoning order dated 7.7.2007 (Annexure P-14), with all subsequent proceedings arising there from, are ordered to be quashed. The petition is allowed. 25.9.2009 ( JORA SINGH ) pk JUDGE