Criminal Misc. No.25922-M of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.25922-M of 2007 Date of decision : 5. 11.2008 Karamveer Singh & others .....Petitioners Versus Ansal Housing & Construction Limited ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Ms. Baljit Mann, Advocate the petitioners. Mr. O.P.Nagpal, Advocate for the respondent S. D. ANAND, J. The petitioners-accused have applied for quashment of the complaint No. 35/3/2006 dated 23.1.2006 which had been filed by the respondent-builder against them for offences under Section 420 and 120-B IPC. Also applied for is the invalidation of the order dated 18.11.2006 passed by the learned Trial Magistrate in that complaint. It is vide that order that the summoning of the petitioners-accused, on appraisal of the preliminary evidence, was ordered by the learned Trial Magistrate. The following facts are apparent from the record and are, even otherwise, beyond the pale of controversy (presently) before this Court:- The petitioners and three others ( Nathi Ram, Suresh and Rajpal) were co-sharers in the indicated Khewats The share of the Nathi Ram, Suresh and Rajpal therein was ¾ , 14/508 and 42/5008 respectively. Their share, in terms of actual land, came to 19 Bighas 1 Biswa, 14 Biswas and 2 Bigha 12 Biswas respectively. Out of his share, Nathi Ram sold 9 Bighas one Biswa land in favour of a 3rd person, vide registered sale deed Criminal Misc. No.25922-M of 2007 -2- **** dated 5.4.2005. Suresh (correctly) sold his share, vide registered sale deed 5.4.2005. Rajpal also (correctly) sold his share vide registered sale deed dated 8.5.2008. The appellants, who held 1/136 share in that land in two Khewats (8 Bighas 9 Biswas in one Khewat and 0 Bigha 9 Biswas in the other) sold the indicated land to the respondent-builder. The precise grievance of the respondent-builder in the course of the impugned complaint, is that the petitioners had cheated it by having sold land much in excess of their share in the joint khewats afore- mentioned. Learned counsel for the petitioners-accused argues that it was, at best, a case of miscalculation of share which can be taken care of appropriately by the following indemnification clause contained in the impugned sale deed:- “....If due to any infirmity legal or otherwise, the land total or any part thereof is deprived of the vendees, we owners of the land or our legal heirs shall be responsible for all types of expenses/damages and to repay the amount for the land or any part thereof and of any penalty, we shall be liable for the same” Apart therefrom, it is argued that petitioners cannot be held accountable for any act of cheating because the respondent-builder has already filed a civil suit for the recovery of precisely this very amount ( Rs.73,10,250/-) and the matter is pending adjudication at the hands of the learned Civil Court. If it is found that the area sold by the petitioners was in excess of their share, the argument proceeds, the suit would be decreed and the respondent-builder shall be adequately compensated for the excess price paid by it. Criminal Misc. No.25922-M of 2007 -3- **** In order to buttress the plea afore-mentioned, learned counsel for the petitioners offers that the respondent-builder may well hand over the possession of the 'excess' land and have the refund of 'excess' price paid by it. In that context, the averment is that there is a recital in the impugned sale deed itself that the possession of the land (sold by the petitioners to the respondent-builder) had been delivered to the vendee. In the context of that offer, learned counsel for the respondent- builder argues that actual possession never came to be delivered and, thus, it is not possible to accept that offer advocated on behalf of the petitioners-accused. Be that as it may, it is an uncontroverted fact that the respondent-builder has already filed a civil suit for the recovery of the precise amount of Rs.73,10,250/- which (civil suit) is pending consideration at the hands of the Civil Court. Obviously, the indemnification clause quoted in an earlier part of the judgment would be under adjudication at the hands of the Civil Court and if it is found that any part of the land sold (by the petitioners to the respondent-builder) was in excess of former share in the joint khewats, the latter shall have to be compulsively reimbursed/compensated thjerefor. A criminal offence presupposes animus on the part of the offender. The learned counsel for the respondent-builder was not in a position to contest the averment on behalf of the petitioners that the former is a big concern wherein the matters pertaining to the purchase of land are handled by real estate and legal experts who undertake an exhaustive exercise about the ascertainment of the title of the land to be acquired before the respondent-builder enters into a transaction of purchase. That exercise would, obviously, include the obtaining of copies of revenue record and also the perusal thereof and the record itself as well. That Criminal Misc. No.25922-M of 2007 -4- **** being so, it cannot be said that the petitioners had malafide intention in the impugned sale. In the light of the fore-going discussion, it is apparent that allowing the impugned (private) complaint to proceed would amount to an abuse of the process of the Court, particularly when the indemnification clause quoted in an earlier part of this order, governs the transaction between the parties and respondent-builder has already had recourse to the remedy available to it on the civil side. The Criminal Misc. petition shall stand allowed. The impugned complaint, as well as the impugned summoning order, shall stand quashed. November 05, 2008 (S.D. ANAND) Pka JUDGE