Crl.Misc. No.M-32110 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-32110 of 2008 Date of Decision:May 18 , 2010 Ram Pal and another ...........Petitioners Versus State of Haryana and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.P.C.Chaudhary, Advocate for the petitioners Mr.Satyavir Singh Yadav,Deputy Advocate General, Haryana None for respondents No. 2 ** Sabina, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of FIR No. 183 dated 26.7.2008 under Sections 406,420,120-B IPC (Annexure P1) registered at Police Station Pundri District Kaithal and all the subsequent proceeding arising thereto. The contents of the FIR (Annexure P1) read as under:- "It is submitted that I, Sukhpal son of Ajaib Singh resident of village H.No.444, Phase 10, Mohali, Punjab submits:(1) That Ram Pal and Sukram Pal sons of Ajmer Singh residents of Kaul, Crl.Misc. No.M-32110 of 2008 2 Sub -Tehsil Dhand, District Kaithal had agreed to sell their land measuring 49 Kanals 13 Marlas of village Faral on 20.6.2007 for a total sale price of Rupees 51,00,000/-. This deal was got struck by Pala Ram son of Karta Ram resident of Amin, District Kurukshetra. (2) That on 20.6.2007 I had paid Rupees 10,00,000/- as earnest money for purchase of this land to above named Ram Pal and Sukram Pal in village Faral in the `Baithak' of Sanjiv Kumar son of Shri Baldev Raj, caste Brahman resident of Faral in presence of Sanjiv Kumar and Ram Parshad @ Babu son of Phula Ram resident of Bherisaida, District Kurukshetra and Surinder Pal Singh son of Ram Singh village sangatpur Samrala, District Ludhiana (Punjab). Photo copy of agreement of sale is enclosed. Pala Tam of village Amin was also present at the spot. (3) That in pursuance of agreement to sell date for execution of sale deed was fixed 23.10.2007 but sale deed has not been executed. (4)That on 22.4.08 Ram Pal and Sukram Pal has sold this land to Smt. Pista Rani wife of Kulbhushan ½ share and Smt. Richa Sharma wife of Vikas Sharma ½ share residents of Kalyat, District Kaithal through execution of sale deed for Rs.61,00,000/- but sale deed has been executed for Rupees 31,07,000/-, Photocopy of which is enclosed. This deal has also been got struck by Pala Ram s/o Karta Ram of village Amin. (5)That above named Ram Pal, Sukram Pal and Pala Ram conspired in collusion and fraudulently embezzled my Rupees Crl.Misc. No.M-32110 of 2008 3 10,00,000/- and in greed of more gains has cheated me by committing breach of this agreement. (6)That on that very day Pala Ram had also received Rupees 10,00,000/- from me as earnest money of 49 kanals 13 Marlas land in village Faral and has not now executed sale deed. (7) That Justice be imparted to me by registering an FIR of conspired cheating against Ram Pal, Sukram Pal son of Ajmer Singh, caste Ror village Kaul, District Kaithal and Pala Ram son of Karta Ram, caste Ror resident of village Amin, District Kuruksehtra.” Learned counsel for the petitioners has submitted that the petitioners had entered into an agreement to sell with respondent No.2 on 20.6.2007. Respondent No.2 had paid Rs. 10,00,000/- as earnest money to the petitioners. The sale deed was to be executed on 23.10.2007. On the said date, petitioners remained present in the Office of Sub Registrar Dhand but respondent No.2 failed to appear for the purposes of execution of the sale deed. Petitioners also served a notice through their counsel on respondent No.2 (Annexure P5) to execute the sale deed within 15 days of receipt of notice failing which the agreement to sell in question (Annexure P2) shall stand cancelled. Despite receipt of the said notice, respondent No.2 failed to get the sale deed executed in his favour. Respondent No.2 has filed a suit for specific performance. Learned counsel has further submitted that the dispute in question was of civil nature and, hence, the criminal proceedings were liable to be quashed . In support of his arguments, leaned counsel has placed reliance on Inder Mohan Goswami Crl.Misc. No.M-32110 of 2008 4 and another vs. State of Uttaranchal and others 2007(4) RCR (Criminal) 548 wherein it has been held as under:- "On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducting must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning." Learned counsel has also placed reliance on Ram Biraji Devi and another vs. Umesh Kumar Singh and another 2006(3) RCR (Criminal) 308 wherein it was held as under:- "10. The learned Magistrate in his order has categorically stated that the perusal of the complaint would make it clear that there was a dispute in respect of sale and purchase of land between the parties. In our view even if the allegations made in the complaint are accepted to be true and correct, the appellants cannot be said Crl.Misc. No.M-32110 of 2008 5 to have committed any offence of cheating or criminal breach of trust. Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the appellants in the complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record. In Trisuns Chemical Industry's case (supra), relied upon by the complainant, this Court held as under:- "Quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge o any function under the Crl.Misc. No.M-32110 of 2008 6 agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases.' 11. There cannot be any disagreement to the well-settled proposition of law that the High Court should exercise its inherent powers in extreme exceptions to quash an FIR or a complaint. The ratio as laid down in Trisuns Chemical Industry's case (supra) is of no help and assistance to the complainant in the facts and circumstances of the present case. The complaint instituted does not disclose that an offence under Section 420 is made out. Cognizance taken by the Magistrate thereon against the appellants for offences under Sections 406/419/420 and 120-B IPC are clearly an abuse of the process of court and interference by this Court is expedient in the interest of justice. This is a case of extreme exception where the High Court ought to have exercised its inherent jurisdiction and power to set aside the unwarranted and unjustified order of the Magistrate impugned before it by the appellants." Learned State counsel, on the other hand, has opposed the petition. After hearing the learned counsel for the parties, I am of the Crl.Misc. No.M-32110 of 2008 7 opinion that the instant petition deserves to be allowed. Agreement to sell was executed by the petitioners in favour of respondent No.2 Sukhpal Singh qua sale of 49 kanals 13 Marals of land situated in village Faral on 20.6.2007. As per the agreement to sell, it was agreed between the parties that the purchaser, after getting the sale deed drafted may get the same executed and registered from the vendors on or before 23.10.2007 on the date fixed for execution of the sale deed. It is evident from Annexure P3, an application moved by the petitioners before the Sub Registrar Dhand and affidavit of the petitioner,Anneuxre P4, that petitioners had remained present in the Office of Sub Registrar for execution of the sale deed. Thereafter, the petitioners also served a notice through their counsel dated 12.2.2008 (Annexure P5) on respondent No.2 that he should get the sale deed executed within 15 days of the receipt of notice failing which the agreement to sell in question shall stand cancelled. Respondent No.2 has now filed a suit for specific performance of the agreement to sell in question. In the present case, the dispute between the parties is of civil nature. The petitioners were owners of the land agreed to be sold by them and had apparently every intention to execute the sale deed in favour of purchaser. In case, the petitioners had failed to adhere to their part of the contract, the remedy available to respondent No.2 is to file a suit for specific performance. Respondent No.2 has taken resort to the said remedy. A perusal of the FIR does not lead to the inference that the petitioners had intention to cheat respondent No.2 at the very inception of execution of the agreement to sell. The fact that the petitioners have executed the sale deed in favour of Pista Rani and Richa Crl.Misc. No.M-32110 of 2008 8 Sharma on 22.4.2008 in itself is not sufficient to lead to the conclusion that the petitioners had intention to cheat respondent No.2 at the time of execution of agreement to sell. In these circumstances, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. FIR No. 183 dated 26.7.2008 under Sections 406,420,120-B IPC (Annexure P1) registered at Police Station Pundri District Kaithal and all the subsequent proceeding arising therefrom are quashed. (Sabina) Judge May 18, 2010 arya