Crl. Misc. No.M-34230 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-34230 of 2009 Date of Decision: 23.02.2010 Surjit Kumar Singla ....Petitioner Versus Om Dutt ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Jai Vir Yadav, Advocate for the petitioner. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 of Cr.P.C. for quashing of the Order dated 27.07.2007 vide which the Judicial Magistrate Ist Class, Chandigarh discharged the respondent-accused and the Order dated 25.04.2009 passed by the Additional Sessions Judge, Chandigarh vide which the revision petition against the Order dated 27.07.2007 was dismissed. The brief facts, as noted by the Additional Sessions Judge, Chandigarh are that “as per the complaint on 10.07.1996, the accused, Om Dutt representing himself to be the absolute owner of a Shop-cum-Office Crl. Misc. No.M-34230 of 2009 2 No.57, Sector 29, Chandigarh, came to him and alleged that the SCO in question is free from all encumbrances, charges and mortgages and its ownership was duly entered in the records of the Estate Office and he could readily obtain the No Objection Certificate for the sale of the same and the accused induced the complainant and his wife to purchase the same and as per his inducement, they entered into an agreement to sell dated 10.07.1996 with respect to this Shop-cum-Office and paid a sum of Rs.6,00,000/- as earnest money to the accused. Later on, he received another sum of Rs.20,00,000/- out of the total consideration of Rs.31,50,000/- under the duly executed receipts and delivered the possession of the first and second floor of the said property on 30.11.1996. Again on 28.01.1997 and 09.02.1997, he obtained Rs.1,00,000/- on each by him fraudulent and dishonest inducement but the accused failed to produce the No Objection Certificate and the income tax clearance certificate and when the complainant inquired into the matter, he came to know that the property was not yet entered in his name in the records of the Estate Office. The property was also encumbered by way of equitable mortgage with Union Bank of India, Sector 35, Chandigarh, for an amount of Rs.4,00,000/-. A huge amount of Rs.9,00,000/- was payable by the accused to the Income Tax Department. Due to these liabilities, the accused was not furnishing necessary certificates to the complainant for the purpose of execution of sale deed.” On the basis of preliminary evidence, the respondent was summoned to face trial. After recording pre-charge evidence, the respondent was discharged by the trial Court. The petitioner filed criminal revision which was also dismissed. The Judicial Magistrate Ist Class, Chandigarh, while discharging the respondent, vide Order dated 27.07.2007, recorded as under :- “ During his cross-examination, he stated Crl. Misc. No.M-34230 of 2009 3 that he as well as his wife was educated. He never asked for the original documents of title from the accused before the execution of the agreement to sell. He never got the agreement to sell extended after 31.12.1996. He admitted that the dates were not mentioned under the receipts Ex.C-6, Ex.C-10, Ex.C- 12 to Ex.C-17, Ex.C-24 to Ex.C-26. All these receipts were typed one and the accused had not put the dates on these receipts. He did not enquire about the No Objection issued by the Estate Office with respect to the property in dispute. He made the payment without confirming the title deeds. He admitted that the loan has been since cleared by the accused. The complainant did not deposit any amount of loan from his own source.” The revision petition against the Order dated 27.07.2007 was dismissed by the Additional Sessions Judge, Chandigarh on 25.04.2009, by recording as follows :- “ xxx xxx xxx xxx 28. It is strange that even after filing the Civil Suit, the petitioner continue to pay some amounts to the respondent and he never agitated about the title of the respondent or any encumbrance on the SCO. Then he filed this complaint in the month of September, 2001 fully knowing that he had already filed a civil suit in the year 1998. This fact further shows that the only intention of the petitioner was to convert a civil dispute into a criminal one just to pressurize the respondent. And this effort of the petitioner is required to be scuttled other wise every breach of agreement will be converted into a criminal case. Thus the fact remains that the learned lower Court rightly held that there is no prima facie evidence to justify commission of a criminal offence by the respondent as alleged.” Second revision is not maintainable. However, the present Crl. Misc. No.M-34230 of 2009 4 petition has been filed under Section 482 Cr.P.C. Hon'ble the Supreme Court in the case of Kailash Verma v. Punjab State Civil Supplies Corporation and another (Criminal Appeals Nos. 117-118 of 2005, decided on 18.01.2005) while holding that the High Court was not justified in exercise the inherent powers under Section 482 of the Code of Criminal Procedure relied on the judgment of the Apex Court rendered in the case of Rajathi v. C Ganesan (1999) 6 SCC 326 observed as under:- “6. It may also be noticed that this Court in Rajathi vs. C. Ganesan 1999(6) SCC 326 said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second Revision. Ordinarily, when a Revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to Revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provision of law were not complied with and when the High Court feel that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.” In the present case, it is not denied that the petitioner continued to pay the instalments in pursuance to the agreement to sell even after he came to know that the property was already mortgaged and the respondent was not able to get the “No Objection Certificate” and in spite of the civil suit having been filed by the petitioner for specific performance of the same. The Civil Suit has been decreed on the basis of same agreement to sell. Thus, there is no merit in the revision petition. Even otherwise, as per the well settled proposition of law, once the revision petition has been dismissed, second revision is not Crl. Misc. No.M-34230 of 2009 5 maintainable and Section 482 of the Cr.P.C can be invoked only if there is a misuse of the process of law or miscarriage of justice arising from misconception of law or irregularity of procedure. Nothing has been pointed out to show that the same has resulted in any miscarriage of justice. The petition is, accordingly, dismissed. (NIRMALJIT KAUR) 23.02.2010 JUDGE gurpreet