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2012 DIGILAW 1503 (PNJ)

Gurmej Singh v. State of Punjab

2012-10-16

SABINA

body2012
JUDGMENT Mrs. Sabina, J.:- Petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.71 dated 20.6.2011 (Annexure P-5) under Section 420/ 120-B of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Sadar Jalalabad, District Ferozepur and all the subsequent proceedings arising therefrom. 2. Prosecution story, in brief, is that the complainant had agreed to purchase 32 kanals of land from petitioner Gurmej Singh. Agreement to sell in this regard was executed on 28.4.2011 and Rs. 1,00,000/- were paid towards earnest money to the seller. Thereafter, on 3.5.2011, another sum of Rs. 3,00,000/- were paid by the complainant to Gurmej Singh. When complainant went to give Rs. 8,00,000/- to Gurmej Singh on 11.5.2011, he (Gurmej Singh) refused to accept the said amount. A panchayat was convened but Gurmej Singh refused to execute the sale deed in favour of the complainant. 3. Learned counsel for the petitioners has submitted that the dispute between the parties in the present case was purely civil in nature and hence, the FIR in question was liable to be quashed. Gurmej Singh had always been ready and willing to perform his part of the contract but respondent No.2 had failed to appear before the sub Registrar on 11.5.2011 along with balance sale consideration for registration of the sale deed. 4. Learned counsel for respondent No.2, on the other hand, has submitted that it was a clear cut case of cheating. Petitioner No.1 had no intention to execute the sale deed in favour of respondent No.2 although he had received Rs. 4,00,000/- from the complainant. 5. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. 6. Petitioner No.1 had no intention to execute the sale deed in favour of respondent No.2 although he had received Rs. 4,00,000/- from the complainant. 5. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. 6. In the case of State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 7. It has been held by the Apex Court in Anil Mahajan vs. Bhor Industries Ltd. & anr. (2006) 1 SCC (Crl.) 746 as under:- “Reliance has been placed, in that order, on various decisions of this Court holding that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.” 8. A perusal of the FIR (Annexure P-5) reveals that the dispute between the parties is purely civil in nature. Both the parties averred that they were ready and willing to perform their part of the contract. A perusal of the FIR (Annexure P-5) reveals that the dispute between the parties is purely civil in nature. Both the parties averred that they were ready and willing to perform their part of the contract. The remedy available to the complainant, if aggrieved, is to file a suit for specific performance. A perusal of the FIR does not reveal that the seller, from the very beginning, had any intention to cheat the complainant. It is also not the case of the complainant that the seller is not the owner of the property in dispute. Rather from the FIR, it is evident that Gurmej Singh was owner of the land in question and had agreed to sell the same to the complainant. In case petitioner Gurmej Singh had failed to perform his part of the contract, the remedy available to the complainant is to file a civil suit for specific performance of agreement to sell. There is a distinction between offence of cheating and mere breach of contract. The present case relates to breach of contract and thus, cannot be said to be a criminal case of offence of cheating. In these circumstances, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. 9. Accordingly, the petition is allowed. FIR No.71 dated 20.6.2011 (Annexure P-5) under Section 420/ 120-B IPC registered at Police Station Sadar Jalalabad, District Ferozepur and all the subsequent proceedings arising therefrom are quashed.