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2006 DIGILAW 806 (PNJ)

Harpreet Kaur v. State Of Punjab

2006-03-01

NIRMAL YADAV

body2006
Judgment Nirmal Yadav, J. 1. The petitioner seeks quashing of FIR No. 132 dated 6.8.2005 (Annexure P-3) under Section 420 of the Indian Penal Code registered at Police Station Hariana, district Hoshiarpur and all subsequently proceedings arising therefrom. 2. Briefly, stated the facts of the case are that petitioner Harpreet Kaur is the wife of Jamiat Singh. On 5.1.2001 Jaimat Singh, being the General Power of Attorney of his son Lakhbir Singh, entered into an agreement to sell on his behalf and on behalf of his son Lakhbir Singh for the sale of land measuring 120 Kanals - 16 Marlas situated in village Bassi Umar Khan, tehsil and district Hoshiarpur, for a consideration of Rs. 3,25,000/- per acre in favour of respondent No. 2 Harjit Kaur wife of Harjinder Singh, resident of Mohal, tehsil and district Jalandhar. The husband of the petitioner also received a sum of Rs. 11 lacs as earnest money. The sale-deed was to be executed and registered on or before 31.1.2002. In pursuance of the agreement to sell dated 5.1.2001 (Annexure P-2), sale-deed with regard to land measuring 103 Kanals - 16 Marlas was executed in the name of Harjinder Singh, husband of respondent No. 2. Meanwhile, Lakhbir Singh died in the month of January, 2003. After the death of Lakhbir Singh, his land was inherited by his mother Harpreet Kaur and his wife Sukhwinder Kaur, being Class-I heirs. Jaimiat Singh got papers prepared for the land measuring 12 Kanals - 19 Marlas in favour of Harjinder Singh, husband of respondent No. 2, and his brother Sucha Singh, but did not get the sale-deed executed inspite of the date fixed as 31.1.2002 for execution of the sale-deed. Moreover, neither the earnest money was adjusted, nor was the sale-deed executed in favour of respondent No. 2 or any other person on her asking. Complainant-respondent No. 2 filed a suit for Specific Performance against the accused persons in the Civil Court at Hoshiarpur. It is further pleaded in the complaint that in the month of January, 2005, complainant came to know that petitioner Harpreet Kaur in connivance with her husband Jamiat Singh has mortgaged the land in question with the Primary Cooperative Agricultural Development Bank Limited, Hoshiarpur (hereinafter referred to as "the Bank") and has, thus defrauded the complainant. It is further pleaded in the complaint that in the month of January, 2005, complainant came to know that petitioner Harpreet Kaur in connivance with her husband Jamiat Singh has mortgaged the land in question with the Primary Cooperative Agricultural Development Bank Limited, Hoshiarpur (hereinafter referred to as "the Bank") and has, thus defrauded the complainant. Both the accused hatched a criminal conspiracy by not executing the sale-deed in favour of the complainant and by mortgaging the land with the bank. 3. According to the petitioner, Jamiat Singh, being the attorney of Lakhbir Singh, had already executed sale-deed in favour of Harjinder Singh and Sucha Singh with regard to land measuring 103 Kanals 16 Marlas. Meanwhile Lakhbir Singh died and remaining land, after his death, has been inherited by his natural heirs, i.e., the mother and his wife. The petitioner has no knowledge about the agreement (Annexure P-2) executed by Jaimat Singh in favour of respondent No. 2. It is further pleaded that even if any General Power of Attorney was executed by Lakhbir Singh in favour of Jamiat Singh, the same stood automatically cancelled after his death. According to the petitioner, no offence, as alleged, under Section 420 of the Indian Penal Code is made out against her, as she never entered into an agreement to sell for the sale of land in dispute, nor is there any breach of contract on her part. Even otherwise also, it is a case of civil nature and respondent No. 2 has already availed the civil remedy by filing a suit for Specific Performance, as is mentioned in the First Information Report dated 6.8.2005 (Annexure P-3). 4. In the reply filed on behalf of respondent No. 1, by Lakhwinder Pal Singh Khera, Deputy Superintendent of Police (R), district Hoshiarpur, it has been stated that challan has already been submitted before the trial Court and the case is fixed for consideration of charge. It is further stated that agreement to sell dated 5.1.2001 (Annexure P-2) executed by Jamiat Singh, was very much in the knowledge of the petitioner. However, with dishonest and mala fide intention and in order to cheat respondent No. 2, petitioner mortgaged the property in favour of the bank despite the fact that the husband of the petitioner had already sold the land of those specific khasra numbers in favour of Sucha Singh on 18.6.2001. 5. However, with dishonest and mala fide intention and in order to cheat respondent No. 2, petitioner mortgaged the property in favour of the bank despite the fact that the husband of the petitioner had already sold the land of those specific khasra numbers in favour of Sucha Singh on 18.6.2001. 5. Harjit Kaur, respondent No. 2, in her reply, also stated that it was well within the knowledge of petitioner that her husband had executed an agreement to sell (Annexure P-2). The petitioner and her husband Jamiat Singh colluded with each other in order to defeat the legal right of respondent No. 2 regarding a part of the land measuring 16 Kanals-19 Marlas. It is further submitted that FIR (Annexure P-3) was registered against the petitioner and her husband, as they have colluded with each other in order to defraud respondent No. 2. 6. I have heard the learned counsel for the parties and gone through the record very minutely. 7. Learned counsel for the petitioner submitted that a bare reading of the FIR (Annexure P-3) clearly shows that no case under Section 420 of the Indian Penal Code is made out against the petitioner, as she never entered into an agreement to sell dated 5.1.2001 (Annexure P-2) with respondent No. 2. If there was any agreement to sell, that was between Jamiat Singh, husband of the petitioner and Harjit Kaur, respondent No. 2. It is further argued that the petitioner never availed the facility of loan from the bank; even the land was redeemed and clearance certificate was issued by the bank on 6.5.2005, which is placed on record as Annexure P-4. It is further argued that the petitioner and wife of Lakhbir Singh inherited the land after the death of Lakhbir Singh as his Class-I heirs. 8. On the other hand, learned counsel for the State assisted by the learned counsel for complainant-respondent No. 2 argued that the case before the trial Court is fixed for framing of charge and at this stage, the High Court should be reluctant to interfere with the proceedings of the trial Court. 9. After going through the entire facts of the case and material available on record, I am of the view that the allegations, made in the First Information Report (Annexure P-3), even if are taken at their face value, do not constitute the offence alleged. 9. After going through the entire facts of the case and material available on record, I am of the view that the allegations, made in the First Information Report (Annexure P-3), even if are taken at their face value, do not constitute the offence alleged. As per the allegations, Jamiat Singh, husband of the petitioner, on his behalf and on behalf of Lakhbir Singh, being his General Power of Attorney, had entered into an agreement to sell with respondent No. 2 for the sale of land measuring 120 Kanals 16 Marlas. Out of the total land, sale-deed with regard to land measuring 103 Kanals 16 Marlas was already executed. It is alleged that the papers were prepared for executing the sale-deed for the remaining land, as per the agreement, but Jamiat Singh, husband of the petitioner, did not come present before the Registrar for registration of sale-deed. Meanwhile, Lakhbir Singh died and his share of land was inherited by Harpreet Kaur, mother and his wife Sukhwinder Kaur. The only allegation levelled against the petitioner is that she mortgaged the land in favour of the bank in order to defeat the right of respondent No. 2, but the same is totally misconceived. As per the clearance certificate dated 6.5.2005 (Annexure P-4), the land was redeemed on 6.5.2005 and the FIR has been registered on 6.8.2005. Thus it is evident that on the date of registration of FIR, the land was not mortgaged with the bank, as alleged by respondent No. 2. There is no other specific allegation against the petitioner that she has, in any way, cheated respondent No. 2. 10. The offence alleged is that of cheating against the petitioner. For the sake convenience, provisions of Sections 415 and 420 of the Indian Penal Code, are reproduced as under :- "415 Cheating :- whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat. Explanation :- A dishonest concealment of facts is a deception within the meaning of this Section." "420. Cheating and dishonestly inducing delivery of property :- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 11 As per provisions of aforesaid quoted sections, the ingredients required to constitute the offence of cheating are :- "(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (ii) in cases covered by (ii)(b) the act or omission should be one which cause or is likely to cause damage or harm to the person induced in body, mind reputation or property." 12. Firstly, in order to attract the provisions of Section 420 of the Indian Penal Code, the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto. Subsequent failure to fulfil the promise by itself would not attract the provisions of Section 420 of the Indian Penal Code. Secondly, mens rea is one of the essential ingredients of the offence of cheating under Section 420 of the Indian Penal Code. The mere failure to deliver in breach of an agreement would not amount to cheating, but, of course, is liable to only a civil action for beach of contract. In the present case, there is not even a breach of contract on the part of the petitioner. If there is any breach of an agreement, that is only on the part of the husband of the petitioner, i.e., Jamiat Singh. The other allegation that the petitioner mortgaged the land is also falsified from the clearance certificate (Annexure P-4) issued by the bank. If there is any breach of an agreement, that is only on the part of the husband of the petitioner, i.e., Jamiat Singh. The other allegation that the petitioner mortgaged the land is also falsified from the clearance certificate (Annexure P-4) issued by the bank. At the most, it can be said to be a case of civil liability, for which it has been stated in the First Information Report (Annexure P-3) that respondent No. 2 has already filed a suit for Specific Performance. It is well settled proposition of law that in such like cases, initiation of criminal proceedings, would amount to an abuse of the process of the Court. 13. Accordingly, the petition is allowed. FIR No. 132 dated 6.8.2005 (Annexure P-3) under Section 420 of the Indian Penal Code registered at Police Station Hariana, district Hoshiarpur against the petitioner and all subsequent proceedings emanating therefrom qua the petitioner are hereby quashed.