CRM No. M-22966 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-22966 of 2008 Date of decision:- 12.11.2010 S.L. Malu son of Sh. C.M. Malu, r/o 1st Floor, Atma Ram Mansion, Sindia House, Connaught Circus, New Delhi – 110001. ......Petitioner Vs Shiv Dayal son of Sh. Lal Singh, Caste Gujar, r/o village Ghata, Tehsil Sohna, District Gurgaon. ......Respondent CORAM:-HON'BLE MR. JUSTICE RANJAN GOGOI Present: Mr. Sumeet Goel, Advocate, for the petitioner. Mr. Navneet Singh, Advocate, for the complainant/respondent. * * * * RANJAN GOGOI, J (ORAL) The petitioner, who is the third accused, in a criminal proceeding registered as No. 215-RG dated 22.07.2004 now pending in the Court of the learned Judicial Magistrate 1st Class, Gurgaon has sought quashing of the said proceeding. An order dated 27.01.2006 of the learned trial Court summoning the accused-petitioner to face trial is an incidental aspect of challenge in the present case. A reading of the complaint petition filed by the respondent indicates that the complainant claims to be the co-owner in joint possession of a parcel of land measuring roughly 46 kanals 12 marlas, situated within revenue village Ghata, Tehsil Sohna, District CRM No. M-22966 of 2008 2 Gurgaon. In para 5 of the complaint petition it is stated that the accused persons had forged a special power of attorney on the basis of which a forged sale deed was prepared by which the land of the complainant was transferred to the name of the accused. On the said facts, according to the complainant, offences under Sections 420, 467, 468, 471 and 120-B IPC have been committed by the accused. It may also be noticed that in para 10 of the complaint it is stated that a Civil Suit bearing Suit No. 141 of 2002 has been filed by the complainant in respect of the same issue. It may be further noticed that seeking the same relief the accused-petitioner had approached this Court earlier by way of CRM No. 27639-M of 2006 which was disposed of by the Court with the direction that the petitioner should challenge the summoning order by filing a revision petition before the learned Sessions Judge. The order of the learned Sessions Judge, Gurgaon dated 13.03.2008 holding the revision petition filed by the accused to be not maintainable has been enclosed to the present application. The crucial test that the Court has to apply to decide whether a criminal proceeding should be quashed is whether on the allegations made, which if presumed to be correct, any offence is made out. The possible defence of the accused cannot be considered to determine whether any offence against the accused is made out or not and the said question has to be solely answered on the basis of the averments made in the complaint petition. Noticing the averments made in para 5 of the complaint petition, the Court finds that there is no specific allegation against the CRM No. M-22966 of 2008 3 present accused-petitioner either with regard to the special power of attorney or the sale deed which are alleged to be forged. The averments made in para 5 of the complaint petition also do not indicate whether the land was sold to accused No. 3 or the role of the accused No. 3, if any, in the alleged forged transaction of sale. A complaint petition cannot go to trial on the basis of vague and uncertain allegations which, in fact, would not disclose the commission of any specific offence by the accused-petitioner. Referring to the averments in para 10 of the complaint petition it has been pointed out by the learned Counsel for the petitioner that in Civil Suit No. 141 of 2002 the accused No. 3 i.e. the petitioner is not even a party and there is no statement in the plaint with regard to any role of the accused No. 3 in the alleged fraudulent transaction of sale. On the said facts, the Court has to reach the conclusion that no offence as alleged by the complainant has been made out against the accused No. 3. The continuance of the complaint case against the said accused, therefore, will be an abuse of the process of the Court . Consequently, this petition is allowed and the proceedings in complaint case No. 215-RG dated 22.07.2004 now pending in the Court of the learned Judicial Magistrate 1st Class, Gurgaon are quashed in so far as the accused No. 3 is concerned. (RANJAN GOGOI) 12.11.2010 JUDGE Amodh