Criminal Misc. No. M1884 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-1884 of 2010 Date of Decision: 27.07.2010 Kulwant Rai son of Sh. Lakhmi Chand son of Radha Kishan, r/o Sat Road Kalan, Tehsil and District Hisar. ... Petitioner Versus 1. State of Haryana. 2. Ram Singh, s/o Todarmal, r/o village Gagankheri, Tehsil Hansi, Distt. Hisar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Shalender Mohan, Advocate, for the petitioner. Mr. Satbir Singh Gauripuria, DAG, Haryana, for respondent No. 1 – State. None for respondent No. 2. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 270, dated 27.06.06, under Sections 406 and 420 IPC, P.S. City Hansi, District Hisar, and all the subsequent proceedings, arising out of the same, has been filed by the petitioner. 2. Kulwant Rai, executed an agreement to sell, in respect of his property, in favour of Ram Singh son of Todarmal, on 03.06.04, and, obtained a sum of Rs. 1,40,000/-, as earnest money. The sale Criminal Misc. No. M1884 of 2010 2 deed, was to be executed and registered, on 30.08.05. On that day, the date for execution and registration of the sale deed, was extended, to 30.08.06. It was stated that, on the other hand, Kulwant Rai, executed a sale deed, in respect of the same property, in favour of one Dinesh Singla son of Tilak Raj son of Sh. Bhanu Ram, resident of 9-N, Model Town, Hisar, which was, against the provisions of law. It was further stated that, the complainant, was, thus, cheated by the petitioner. Accordingly, the FIR, aforesaid, was registered, against him. 3. None appeared, on behalf of respondent No. 2, despite his due service. 4. I have heard the Counsel for the petitioner, as also the Counsel for respondent No. 1/State, and, have gone through the documents, on record, carefully. 5. The Counsel for the petitioner, submitted that, the allegations, contained in the FIR, only constitute a civil dispute. He further submitted that, no criminal offence, from the allegations, contained in the FIR, is constituted. He further submitted that, there is nothing, on the record, that right from the very beginning, the intention of the petitioner, was to cheat the complainant. He further submitted that, even the complainant, has already filed a suit for specific performance of the agreement, allegedly executed by the petitioner, in his favour. He further submitted that, since the allegations, contained in the FIR, do not constitute the criminal offence, continuance of the same and the subsequent proceedings, Criminal Misc. No. M1884 of 2010 3 arising therefrom, would amount to abuse of process of the Court. 6. On the other hand, the Counsel for the respondent – State, submitted that, right from the very beginning, the intention of the petitioner, was to cheat the complainant. He further submitted that, as such, the petitioner, committed the offence, punishable under Section 420 IPC. He further submitted that, no ground, was made out for quashing the FIR and the subsequent proceedings, arising therefrom. 7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set Criminal Misc. No. M1884 of 2010 4 out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 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 Criminal Misc. No. M1884 of 2010 5 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 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 absurd 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 Criminal Misc. No. M1884 of 2010 6 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 accused, and with a view to spite him due to private and personal grudge. 8)Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 8. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. In the instant case, from the allegations, contained in the FIR, it is evident, that the dispute, is only of civil nature. In case, the sale deed had not been executed by the petitioner, in favour of respondent No. 2, on the basis of the agreement to sell, then, he could file a suit for specific performance, and, in the alternative for recovery of the earnest money with interest. Respondent No. 2 is already stated to have filed such a suit against the petitioner. There is nothing, on the record that, right from the very beginning, there was an intention, on the part of the Criminal Misc. No. M1884 of 2010 7 petitioner, to cheat the complainant/respondent No. 2. For constituting the offence, punishable under Section 420 IPC, it must be prima-facie established, that right from the inception of the transaction, there was an intention, on the part of the accused/petitioner, to cheat the complainant, as a result whereof, he was made to part with a huge amount. The ingredients, required for constituting the offence, punishable under Section 420 IPC, are not fulfilled, from the allegations, contained in the FIR. No offence, punishable under Sections 406 IPC, is also made out from the allegations contained in the FIR. The facts of the instant case, fall within the ambit of category No. 3, carved out, in State of Haryana and others' case (supra). In these circumstances, continuance of the FIR and the subsequent proceedings, arising therefrom, is nothing, but an abuse of process of the Court, and, would cause injustice, to the petitioner. The FIR and the subsequent proceedings, are, thus, liable to be quashed. 9. For the reasons recorded above, Criminal Misc. No. M-1884 of 2010, is accepted. The FIR and the subsequent proceedings, arising therefrom, qua the petitioner, are quashed. 10. The Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately. 27.07.2010 (SHAM SUNDER) Amodh JUDGE