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2013 DIGILAW 281 (PNJ)

Shakuntla Devi v. State of Punjab

2013-03-01

SABINA

body2013
JUDGMENT SABINA, J. Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.39 dated 21.4.2007 under Section 420 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Dakha District Ludhiana (Annexure P-2) and all the subsequent proceedings arising therefrom. Learned counsel for the petitioner has submitted that in the present case the dispute between the parties was purely civil in nature. In fact, the petitioner had sent the cheque in the sum of Rs.1,50,000/- to the complainant through registered post. Suit for specific performance of agreement to sell has already been filed by the complainant. Hence, the criminal proceedings initiated against the petitioner, who was 79 years old, were liable to be set aside. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Ram Biraji Devi and another vs. Umesh Kumar Singh and another 2006 (3) RCR (Criminal) 308, wherein, it was held as under:- “9. We have given our anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties. On examination of the contents of the complaint, we find that there is not even a whisper of allegation or averment made therein constituting an offence for which cognizance has been taken by the learned Magistrate against the appellants. On the one hand, the complainant himself has stated in the complaint that oral agreement to sell the plot took place in July 2002 and on the other hand, he has alleged that he started paying the consideration amount for the purchase of the plot between 15.7.2000 and 15.12.2002. The version of the complainant is self-contradictory and, therefore, no prima facie case is made out against the appellant involving them in the commission of the alleged offences. 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 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. In our view even if the allegations made in the complaint are accepted to be true and correct, the appellants cannot be said 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 his 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.” Learned State counsel as well as learned counsel for respondent No.2, on the other hand, have opposed the petition. Learned counsel for respondent No.2 has further submitted that the petitioner had entered into the agreement (Annexure R-2/2) with the complainant on her own behalf and on behalf of her sons and had induced the complainant to part away with the earnest money. However, thereafter, the complainant had failed to honour the said agreement. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. 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 Criminal Misc. 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. (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.” In the present case, a perusal of the agreement in question Annexure P-5/ (also R-2/2) itself reveals that the petitioner along with others had entered into an agreement with the complainant. The said agreement is dated 14.6.2006. The said agreement is dated 14.6.2006. As per the same, agreement to sell was to be executed between the parties on 5.7.2006. Sale deed was to be executed in favour of the complainant on 28.2.2007. Rs. 5,00,000/- were paid as token money by the complainant to the sellers. Out of the said amount Rs.1,50,000/- had been received by the petitioner on her behalf and on behalf of her sons. So far as the other sellers are concerned, they have admittedly executed sale deeds in favour of the complainant. Petitioner and her sons, however, had failed to execute the sale deed in favour of the complainant. The fact that the petitioner and her sons had failed to execute the sale deed in favour of the complainant, although the petitioner had assured that she along with her sons would execute the sale deed in favour of the complainant, would not lead to the inference that the petitioner had committed any criminal offence. The dispute between the parties is purely civil in nature. The complainant has resorted to his remedy by filing a suit for specific performance against the petitioner and others. From the perusal of the FIR, it cannot be said that the petitioner had a dishonest intention from the very beginning to cheat the complainant or to commit an offence of criminal breach of trust. Petitioner has failed to honour the contract entered between the parties and for that the civil remedy available to the complainant has already been availed by him. Hence, in the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, this petition is allowed. FIR No.39 dated 21.4.2007 under Section 420 IPC registered at Police Station Dakha District Ludhiana (Annexure P-2) and all the subsequent proceedings arising therefrom are quashed.