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2001 DIGILAW 1258 (PNJ)

Nand Lal v. State Of Punjab

2001-11-08

R.C.KATHURIA

body2001
Judgment R.C.Kathuria, J. 1. Nand Lal petitioner seeks quashing of F.I.R. No. 88 dated 15.4.1999 registered under Section 420 of the Indian Penal Code (hereinafter referred to as `the Code) with Police Station City Fazilka and simultaneously he has also prayed for stay of the proceedings arising out of aforesaid F.I.R., during the pendency of civil suit, titled as Madan Mohan Kalra and others v. Nand Lal and others, pending in the Court of Civil Judge, Fazilka. 2. The facts have to be noticed in detail in order to focus the controversy involved in this petition. On 17.8.1994 Nand Lal petitioner had entered into two agreements to sell his two shops comprised in land measuring 7 Sarsai, out of land measuring 3 Marlas 5 Sarsai, forming part of Khasra No. 563/3/2, Khewat No. 313, Khatauni No. 356 as per Jamabandi for the year 1989-90 and Khewat No. 362 Khatauni No. 624 as per Jamabandi for the year 1994-95 situated in the area of Ladhuka Hadbast No. 308 in favour of Madan Mohan Kalra, Ladhu Ram and Sukhdev Dass for a consideration of Rs. 3.35 lacs. Rs. 3.10 lacs were paid to him as per terms of the contract and balance consideration amount was to be paid at the time of registration of sale deed on 30.12.1994. It was also stipulated between the parties that if the sale deed is not executed by that date, the proposed vendees would be entitled to a decree for recovery of Rs. 4 lacs which would include Rs. 3.30 lacs paid to the vendor Nand Lal as earnest money and Rs. 70,000/- as damages and compensation for non-fulfilment of terms of the agreement alongwith future interest at the rate of 24% per annum from the date of agreement. Possession of the above mentioned property was agreed to be handed over on the date of registration of sale deed. Nand Lal expressed his inability to perform his part of the contract on the due date on 30.12.1994 and for that reason, date for execution and registration of the sale deed was extended to 10.3.1995 and a writing to this effect was made on the reverse of the agreement. Nand Lal expressed his inability to perform his part of the contract on the due date on 30.12.1994 and for that reason, date for execution and registration of the sale deed was extended to 10.3.1995 and a writing to this effect was made on the reverse of the agreement. Again on 10.3.1995, he failed to execute the sale deed in terms of the aforesaid agreement and for that reason he prayed for extension of time, which was further extended upto 15.5.1995 and that too after receiving further payment of Rs. 20,000/- from the proposed vendees towards the sale consideration. A writing to this effect was executed on the back of the agreement in the presence of witnesses. Madan Mohan Kalra, Ladhu Ram and Sukhdev Dass appeared before the Sub Registrar for registration of the sale deed on the extended date, but Nand Lal failed to turn up to perform his part of the contract. A registered notice dated 10.6.1995 was sent to Nand Lal petitioner in this regard at their behest requiring him to perform his part of the agreement. To the surprise of the proposed vendees, they came to know that Nand Lal had executed a sale deed dated 25.5.1995 bearing Wasika No. 940 in favour of Kewal Krishan in respect of the shop measuring 32-3"x7 and beyond this 6-8" in breadth i.e. 3 Sarsai out of 7 Sarsai boundaries whereof have been described in the sale deed. He further executed another sale deed dated 22.10.1996 bearing Wasika No. 2540 in favour of Chiman Lal in respect of shop measuring 6 x 12 approximately equivalent to 3-1/2 Sarsai boundaries whereof have been described in the sale deed out of above mentioned land. As these sale deeds have been executed by Nand Lal dishonestly and in order to cheat the complainant, Madan Mohan Kalra lodged F.I.R. No. 88 dated 15.4.1999 with Police Station City Fazilka in the regard. The case is still under investigation. 3. As these sale deeds have been executed by Nand Lal dishonestly and in order to cheat the complainant, Madan Mohan Kalra lodged F.I.R. No. 88 dated 15.4.1999 with Police Station City Fazilka in the regard. The case is still under investigation. 3. Though, the prayer made in the petition is for quashing of the F.I.R., but during the course of arguments, learned counsel for the petitioner confined his prayer to the stay of criminal proceedings arising out of the said F.I.R., during the pendency of the civil suit, which has been instituted in the Court of Additional Civil Judge (Senior Division), Fazilka on the facts narrated above, wherein Madan Mohan Kalra, Ladhu Ram and Sukhdev Dass have claimed relief of possession by way of specific performance of the contract dated 17.8.1994 and have also challenged the legality of sale deeds dated 25.5.1995 and 22.10.1996 claiming that these have no binding effect on their rights in respect of the property in dispute. In support of the prayer made, reference has been made to the plaint, copy of which is Annexure P-1 and also to the written statement, copy of which is Annexure P-2, filed by Nand Lal in the said suit wherein he has taken up the stand that the agreement in question is a sham transaction which was obtained by Madan Mohan Kalra and others as security for payment of the amount of Rs. 3.35 lacs which was due from him to M/s Krishi Sewa Kendra, Fazilka through Bajrang Lal Gupta and M/s Ashok Kumar Pushpinder Kumar, Jalalabad through Ashok Kumar son of Kishore Chand. It was also contended by learned counsel for the petitioner that in fact Nand Lal petitioner is a retail pesticide dealer running his business at Mandi Ladhuka, Tehsil Fazilka. He had been purchasing pesticides from aforesaid concerns on credit but he could not pay the due amount to aforesaid firms due to losses and in order to secure the said amount, a settlement was arrived at between the parties through the intervention of Diwan Chand and Mulkh Raj Chhabra and as per settlement, two agreements dated 17.8.1994 came to be executed in favour of the persons nominated by them, though they were not known to the petitioner. 4. 4. On the basis of above stated facts, it was urged by the learned counsel for the petitioner that stay of proceedings is justified because findings of Civil Court have a binding effect on the Criminal Court and if stay is not granted it would cause prejudice to the petitioner. 5. For the abovesaid stand, reliance was placed on the observations made in Rattan Singh and others v. State of Haryana and another, 1996(1) RCR 57, R.C. Goenka v. Som Nath Jain, 1996(2) RCR 205 and Sagar Suri v. State of U.P., 2000(1) RCR(Criminal) 707. In Rattan Singh and others v. State of Haryana and another (supra), an agreement dated 11.11.1992 in respect of property in Sector 8, Panchkula was executed by Narender Rajni Kawatra in favour of the petitioners and at that time Rs. 8.35 lacs were paid in cash. The sale deed could not be executed as stipulated in the agreement, with the result another agreement dated 6.3.1993 was executed, upon which date further payment of Rs. 5.10 lacs was made by the petitioners. Subsequently, this very property was sold to Smt. Kailash Rani, who later on lodged the report alleging that she was in possession of the property on the basis of sale made in her favour and documents in favour of the petitioners were forged. The petitioners had filed the petition under Section 482 Cr.P.C. seeking quashing of the aforesaid F.I.R. registered with Police Station Panchkula and subsequent proceedings arising therefrom. The Court took notice of the fact that petitioners had already filed a civil suit in respect of the property in dispute for the claim made and had also moved an application for stay. The Civil Court which was seized of the matter had granted interim injunction in their favour. Smt. Kailash Rani had also filed a civil suit which was lateron withdrawn by her. Taking into account that findings of the civil Court would be binding on the Criminal Court, it was observed that it would be an exercise in futility to continue with the trial as the Civil Court would determine the crucial issue in respect of the genuineness of the sale agreement in favour of the petitioners and for that reason in the interest of justice, proceedings, pertaining to F.I.R. No. 51 dated 7.4.1993 were stayed. In case R.C. Goenka v. Som Nath Jain (supra) complainant had advanced Rs. In case R.C. Goenka v. Som Nath Jain (supra) complainant had advanced Rs. 7 lacs to the accused for investment in stocks and shares in order to earn profit. A criminal complaint was filed by the complainant under Sections 420 and 120-B I.P.C. against the accused alleging that he had committed fraud by not conducting genuine deals and not disclosing proper accounts to the complainant. Civil suit for the recovery of said amount and arbitration proceedings were also pending. The Court took notice of the fact that criminal proceedings was an attempt to harass the accused because if the Civil Court accepts findings of fraud, then accused would be liable to be prosecuted for criminal offence and for that reason it would be fair to stay the criminal proceedings. It was also laid down that there is no rigid or strait-jacket formula fixing standard for stay of criminal proceedings while civil proceedings are pending because basically the Court would be concerned to prevent abuse of process of law, multiplicity of litigation and possibility of frustration of either of the proceedings. For reaching this conclusion, reference was made to Ram Sumer Puri Mahant v. State of U.P., and others, 1985(1) Supreme Court Cases 427, Kusheshwar Dubey v. M/s. Bharat Coking Ltd. & Others, AIR 1988 S.C. 2118, Ravinder Kaur Bedi v. J.S. Bedi, 1988(2) D.L. 348, Taxamaco Ltd. v. Arun Kumar, 1990(3) D.L. 63, V.M. Shah v. The State of Maharashtra and another, Judgments Today 1995(6) SC 433, Sapinder Singh and another v. State of Punjab and others, 1992(2) C.C. Cases 67 and Babu Singh v. State of Punjab and others, 1991(2) C.C. Cases 421. It would appear from the reported judgment, that during the course of arguments, it was also submitted from the side of the respondent that he should be given chance to prove his case and placed reliance on the case Pratibha Rani v. Suraj Kumar and others, AIR 1985 Supreme Court 628. But this prayer was not accepted because the petitioner was seeking only stay of the criminal proceedings till pendency of the civil proceedings. In Sagar Suri v. State of U.P. (supra) it was observed in para 8 of the judgment as under :- "Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. In Sagar Suri v. State of U.P. (supra) it was observed in para 8 of the judgment as under :- "Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 6. In the above mentioned case, none of the two appellants were found to be a Director of Ganga Automobiles Ltd. The only allegation against the first appellant was that he is the authorised signatory of that company and had signed the cheques which were returned dishonoured. In respect of the second appellant, the allegations were that first appellant alongwith Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June, 1996 and had represented that they and Shalini Suri, Shama Suri (appellant No. 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. The Court pointed out that in the counter-affidavit nothing was stated in respect of the role, if any, played by the second appellant. Moreover, complainant had already filed complaint under Section 138 of the Negotiable Instruments Act. 7. On the other hand, learned State counsel representing the State of Haryana, respondent No. 1, and learned counsel representing respondent No. 2, submitted that the facts of the present case are entirely different than that of the above stated cases. Moreover, complainant had already filed complaint under Section 138 of the Negotiable Instruments Act. 7. On the other hand, learned State counsel representing the State of Haryana, respondent No. 1, and learned counsel representing respondent No. 2, submitted that the facts of the present case are entirely different than that of the above stated cases. While referring to the stand taken by Madan Mohan Kalra, who is respondent No. 2 in the present petition, in the civil suit filed by him, it was submitted that the dishonest intention on the part of the Nand Lal is manifest on record because he had received substantial consideration amount and kept on assuring him that he would execute the sale deed in his favour by extending the date of registration of sale deed and then all of a sudden transferred property subject matter of the agreement dated 17.8.1994 in favour of Kewal Krishan and Chiman Lal. It was also submitted by them that the stand taken by Nand Lal petitioner in the written statement filed by him in civil suit that agreements to sell came to be executed as a security for the amounts due from him to the aforesaid two concerns is pure concoction to avoid the liability arising out of the agreements. It was also submitted by the counsel representing the respondents that after the submission of report under Section 173 Cr.P.C., a charge has also been framed against the petitioner and for that reason the proceedings of the case should not be stayed. Reference was made to the case Minakashi Bala v. Sudhir Kumar, 1994(3) RCR 123 (SC) wherein it was laid down that after cognizance is taken by the Court and charge is framed against the accused under Section 240 Cr.P.C., the remedy available to the aggrieved person is to file revision before the Court of Sessions and not to seek quashing of the same under Section 482 of the Code of the Criminal Procedure. It was also submitted by them that criminal proceedings on the same facts can continue simultaneously as laid down in Sukhdev Singh v. Gurnam Singh, 1995(3) RCR 35. In this case, Gurnam Singh respondent had agreed to sell agricultural land to Sukhdev Singh petitioner for Rs. 9,000/- per kanal before 21.3.1986. It was also submitted by them that criminal proceedings on the same facts can continue simultaneously as laid down in Sukhdev Singh v. Gurnam Singh, 1995(3) RCR 35. In this case, Gurnam Singh respondent had agreed to sell agricultural land to Sukhdev Singh petitioner for Rs. 9,000/- per kanal before 21.3.1986. As per terms of the agreement, sale deed was to be executed on 21.3.1986 but on this date, Sukhdev Singh did not appear in the office of Sub Registrar, while Gurnam Singh was present. Thereafter, FIR No. 137 dated 1.5.1987 was recorded in Police Station Banga, District Jalandhar under Sections 419, 420, 467, 468, 471 and 120-B of the Code on the allegation that on 25.4.1986 Sukhdev Singh petitioner had fraudulently got registered sale deed of Gurnam Singhs land in favour of his three sons. According to the stand of Gurnam Singh, he was not present in the office of Sub Registrar on 25.4.1986 and had never appended his signatures on the aforesaid fraudulent sale deed. He had to file a civil suit against Sukhdev Singh and his sons on 17.2.1987 for declaration to the effect that sale deed dated 28.4.1986 is null and void, ineffective, fictitious and a fabricated document. The case was decided by Additional Senior Sub Judge, Nawanshahar wherein it was held that the sale deed dated 28.4.1986 was the result of impersonation to defeat the proprietary rights vested in the plaintiffs in respect of the land comprised therein. In that civil, suit, defendant Sukhdev Singh had examined Jawala Ram, an attesting witness to the sale deed, but he had not supported the stand of the defendant. On the basis of documents collected by the prosecution in the investigation, the Court came to the conclusion that offence under which F.I.R. was registered was made out. The stay of the criminal prosecution was sought because the parties had preferred appeals against the judgment and decree passed by the Court of Additional Senior Sub Judge, Nawanshahar. It was contended that the matter being subjudice, the criminal proceedings could not be allowed to be proceeded with and consequently the F.I.R. was sought to be quashed. The Court did not accept the prayer made for quashing of the F.I.R. primarily for the reason that the offences were prima facie made out and the civil Court had also held that the alleged sale deed was not executed by Gurnam Singh. The Court did not accept the prayer made for quashing of the F.I.R. primarily for the reason that the offences were prima facie made out and the civil Court had also held that the alleged sale deed was not executed by Gurnam Singh. Accordingly, petition filed under Section 482 of the Code of Criminal Procedure was dismissed. Further, reference was made to Kanwarjit Singh v. Pritam Kaur, 1995(1) RCR 111, in which as per allegation of the complainant, accused had forged power of Attorney and on that basis has sold the plot. The owner had filed a criminal case and a civil suit. In the criminal case, accused was summoned. Jurisdiction of High Court was invoked for quashing the criminal complaint but this prayer was declined on the ground that where genuineness of forgery of the agreement was under consideration, the criminal proceedings could also continue. Support was sought from the observations made in case Vijay Kumar and another v. State of Punjab and others, 1991(2) Recent Criminal Reports 220 in this regard. Further, reliance was placed upon the case Shyam Sunder v. State of Punjab, 1998(3) RCR(Criminal) 448 wherein quashing of the F.I.R. No. 35 dated 8.4.1996 registered with Police Station Ropar under Sections 406 and 420 of the Indian Penal Code and all the proceedings relating thereto and arising therefrom or in connection therewith was sought by the petitioners. The facts of the case were the petitioner No. 1 was stated to be petty shopkeeper carrying of `Karyana business in Sector 20-D, Chandigarh, while petitioners No. 2 to 4 were his sons. Respondent No. 3 was working was financier and being friendly with petitioner No. 1 had advanced Rs. 2 lacs on 13.12.1994 to petitioner No. 1 upon his agreeing to pay back the said amount within a short period without any interest. The amount could not be returned by petitioner No. 1, as promised. Subsequently, he returned the loan amount in two instalments and the last payment through cheque dated 12.4.1995 was made by him to respondent No. 3. A receipt for Rs. 56,000/- was also executed by respondent No. 3 in this regard wherein he mentioned that he had received the amount in question in full and final settlement of his claim. Subsequently, he returned the loan amount in two instalments and the last payment through cheque dated 12.4.1995 was made by him to respondent No. 3. A receipt for Rs. 56,000/- was also executed by respondent No. 3 in this regard wherein he mentioned that he had received the amount in question in full and final settlement of his claim. However, on second thought respondent No. 3 demanded interest at the higher rate which petitioner did not agree to pay to him on the plea that full and final settlement has already been made between the parties. Thereafter, respondent No. 3 filed a complaint to the Chandigarh Police alleging that he had been cheated by the petitioner and his sons. After enquiry, the Chandigarh Police came to a conclusion that matter was of civil nature and for that reason no action on criminal side was to be taken. Thereafter, respondent No. 3, without disclosing the above reported matter, approached the Police at Ropar with the same set of allegations made in the complaint, on the basis of which case registered. After rejection of pre-arrest bail of petitioner No. 1, he was arrested by the Police and was released on bail after 18 days. Subsequently, he filed petition under Section 482 of the Code of Criminal Procedure seeking quashing of the aforesaid F.I.R. After notice was served upon respondent No. 3, be took up the stand that amount of Rs. 2 lacs was advanced to petitioner under deception and the allurement in order to get a gas agency at Kharar and this amount was not borrowed by the petitioner but was a trust money which was extorted from the respondent with dishonest intention. It was also stated by him that after investigation, report under Section 173 of the Code of Criminal Procedure had been filed. In respect of the payment of Rs. 56,000/- received by him, he explained that this payment was made to him for the purpose of S.T.D. connection and related to a separate deal. He, thus, denied liability of any interest, so claimed by the petitioners and justified the registration of case against the petitioners. The Court looking stock of the facts had observed that after the framing of charge, the petitioners could challenge the order in the Court of Competent jurisdiction and the defence taken by them was open to them before the trial Court. The Court looking stock of the facts had observed that after the framing of charge, the petitioners could challenge the order in the Court of Competent jurisdiction and the defence taken by them was open to them before the trial Court. Thus, the petition was dismissed. 8. Dealing with the issue raised, the observations made by the Apex Court in case M.S. Shariff v. State of Madras, AIR 1954 SC 397, need to be referred to. It was laid down that as between the civil court and the Criminal proceeding, the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal Courts is not a relevant consideration. Law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant except for certain limited purposes, such as sentence or damages. The only relevant consideration is the likelihood of embarrassment. Another relevant factor to be noted is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should await till everybody concerned has forgotten all about the crime. Public interest demands that criminal justice should be swift and it should ensure that the guilty is punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case may make some other course more expedient and just. Therefore, each case has to be considered on its own facts. 9. It is manifest from the observations made in the above mentioned cases that basically the controversy raised before the Court has to be decided on the basis of facts of each case. Adverting to the facts of the present case, at the risk of repetition, agreement to sell dated 17.8.1994 was executed by Nand Lal, petitioner, in favour of Madan Mohan Kalra, respondent No. 2, Ladhu Ram and Sukhdev Dass in respect of the property owned by him in consideration of Rs. 3.35 lacs, out of which he had received Rs. Adverting to the facts of the present case, at the risk of repetition, agreement to sell dated 17.8.1994 was executed by Nand Lal, petitioner, in favour of Madan Mohan Kalra, respondent No. 2, Ladhu Ram and Sukhdev Dass in respect of the property owned by him in consideration of Rs. 3.35 lacs, out of which he had received Rs. 3.10 lacs as part payment towards consideration amount and the balance amount was to be paid at the time of registration of the sale deed which was to be executed on 30.12.1994. He had further received Rs. 20,000/- from Madan Mohan Kalra etc. towards the consideration amount on 10.3.1995 when the date of execution of agreement was extended upto 15.5.1995. So, upto that date he kept on giving allurement to Madan Mohan Kalra etc. that sale deed in respect of the property in question would be executed in their favour. Soon after, on 25.5.1995, within 10 days of the extended time as per endorsement dated 10.3.1995 on the back of the agreement for execution of the sale deed, he executed sale of part of the property in favour of Kewal Krishan. Again on 22.10.1996 he executed sale deed in favour of Chiman lal in respect of other part of the property. No doubt, Madan Mohan Kalra and others have filed civil suit for the specific performance of agreement dated 17.8.1994 against Nand Lal and subsequent purchasers but it is not disputed that written statement has also been filed by Nand Lal in that suit. Therefore, there is no question of any harassment or embarrassment from continuing criminal proceedings against him because in the written statement while denying his liability, he has taken the plea that he has not received consideration amount and the agreement dated 17.8.1994 was executed only as a security for payment of Rs. 3.75 lacs due from him to M/s Krishi Sewa Kendra, Fazilka and M/s Ashok Kumar Pushpinder Kumar, Jalalabad, which he has to establish. Moreover, those averments are not the part of the First Information Report and no allegations qua them has been made by Madan Mohan Kalra. Circumstances of the case thus do not warrant that criminal proceedings against the petitioner be stayed. Moreover, those averments are not the part of the First Information Report and no allegations qua them has been made by Madan Mohan Kalra. Circumstances of the case thus do not warrant that criminal proceedings against the petitioner be stayed. Additionally, it is also not disputed from the side of the petitioner that charge against the accused has been framed on 17.9.2000 under Section 420 of the Code and he would get sufficient opportunity to establish his defence during the trial of the case. For the aforesaid reasons, there is no merit in the present petition. Consequently, the same is dismissed.