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Judgment
Ravindra Singh, J.—This application u/s 482, Cr. P.C. has been filed by the applicants M/s. Delhi Auto and General Finance Private Limited, through Sri G. Sagar Suri, Chairman and Narendra Suri with a prayer to quash the chargesheet dated 4.3.2010 in Case Crime No. 755 of 2009 under Sections 406, 420, 467, 468, 471, I.P.C. P. S. Indrapuram, District Ghaziabad pending in the court of learned C.J.M. Ghaziabad vide Criminal Case No. 14910 of 2010.
The facts in brief of this case are that the F.I.R. has been lodged by O.P. No. 3 Smt. Veena Rani on 30.3.2009 in respect of the incident allegedly occurred on 24.6.2003, the F.I.R. has been registered in Case Crime No. 755 of 2009, P. S. Indrapuram, District Ghaziabad. It is alleged that the first informant O.P. No. 3 Veena Rani entered into agreement to sale with the applicants about a land bearing Khata No. 127 and Khasra No. 520/1 having an area of 12 Beeghas situated in village Moiuddinpur Kanavani, Pargana Loni, Tahsil Dadri, District Gautam Budh Nagar. The agreement was made by the applicant No. 1 to sale the land to the O.P. No. 3 at the rate of Rs. 1,200 per sq. metre, in pursuance of the agreement Rs. Two lacs in cash were given by the respondent as earnest money on 24.6.2003, a pay order No. 243650 dated 30.6.2003 of Rs. Three lacs, a pay order No. 242660 dated 3.7.2003 of Rs. 3.5 lacs, a pay order No. 112701 dated 4.9.2003 of Rs. Ten lacs, a pay order No. 112969 dated 24.10.2003 of Rs. Seven lacs were paid by the respondent No. 3 to applicant No. 1. The rest of the money was to be paid at the time of execution of the sale deed but the applicant No. 1 did not execute the sale deed of the land concerned, for execution of the sale deed a registered notice dated 19.5.2007 was sent by the O.P. No. 3 mentioning therein that the sale deed may be executed on 18.6.2007 but the applicant No. 1 did not turn up to execute the sale deed. The applicant No. 1 deliberately with the dishonest intention committed a fraud with O.P. No. 3 even he did not return the earnest money which was received by him. But without consent of O.P. No. 3 the land for which agreement to sale was made with the O.P. No. 3 has been sold by the applicant No. 1 to third party. After investigation the Investigating Officer has submitted the charge-sheet dated 4.3.2010 in the court of learned Chief Judicial Magistrate, Ghaziabad who has taken the cognizance on 21.4.2010. Being aggrieved from the charge-sheet dated 26.2.2010 the applicants have filed this application u/s 482, Cr. P.C. with the prayer to quash the same.
Heard Sri Murli Dhar, senior advocate assisted by Sri Hari Lal Pandey, learned counsel for the applicants and learned A.G.A.
It is contended by learned counsel for the applicants that :
(1) The applicant No. 1 had made request to O.P. No. 3 several times to fulfil her commitment and get the agreement registered but she never turned up to take necessary steps for making the payment of money and get the registered sale deed. Thus, the O.P. No. 3 has cheated the applicant No. 1 and without having any authority she has tried to sell the applicants'' property to her relatives. The applicants had requested her to take the refund of the money which she had deposited but she never turned up.
(2) That in the entire body of the F.I.R. there is no reference to the name or role assigned to the applicant No. 2, however at the tail end of the F.I.R. the cryptic assertion requesting the police to register the case against the applicant No. 2 Narendra Suri has also been made.
(3) Upon the registration of the F.I.R. the applicants alongwith the co-accused Shiv Suri filed a Criminal Misc. Writ Petition No. 3992 of 2010 in which the interim order dated 18.3.2010 staying the arrest of the applicants during investigation has been passed by the Division Bench of this Court.
(4) The applicant No. 2 had nothing at all to do with the alleged agreement to sale altered by the applicant No. 1 and O.P. No. 3.
(5) The applicant No. 2 is not party with the agreement to sale even no material has been collected by the Investigating Officer during investigation connecting applicant No. 2 with the transaction for sale between applicant No. 1 and O.P. No. 3 in any manner whatsoever.
(6) The applicants have been falsely implicated in the present case, there is no cogent material to connect them with the commission of the alleged offence. The Investigating Officer has submitted the charge-sheet without doing the fair investigation, the applicants have been charge-sheeted with malice.
(7) The learned Magistrate concerned has taken the cognizance on the basis of the impugned charge-sheet and issued non-bailable warrant to arrest without perusing the contents of the charge-sheet.
(8) The material collected by the Investigating Officer is not prima facie disclosing the commission of the offence for which the applicants have been charge-sheeted. The nature of the alleged offence appears to be of civil in nature, inasmuch as the proper course would have been to file civil suit for specific performance.
(9) The criminal proceedings are maliciously instituted with the ulterior motive with intention to humiliate the applicants because there was no breach of trust or cheating committed by the applicants.
(10) The applicants belong to highly reputed family, they are father and son respectively. The applicant No. 1 is old man of 86 years, in fact not able to move without support, the pace maker has been installed in his heart in the year 1982 and he is suffering from various ailments, therefore, the proceedings pending against the applicants may be quashed.
In reply of the above contention, it is submitted by learned A.G.A. that it is an admitted fact that the applicant No. 1 has accepted the huge amount given by the O.P. No. 3 in pursuance of agreement to sale. The defence taken by the applicants, at this stage is that O.P. No. 3 herself did not turn up for getting the execution of the sale deed by paying the rest of the money, may not be considered because after paying the huge amount to purchase the land it was highly unbelievable that O.P. No. 3 did not turn up for execution of the sale deed. It has been stated by the witness Dua Chandra u/s 161, Cr. P.C. that applicant No. 1 and others sold the land for which the agreement of sale was done to the third party. It shows that the applicants have committed fraud with O.P. No. 3 and they were having dishonest intention since very the beginning to cheat the O.P. No. 3 but in good faith the huge amount of money as earnest money was paid by the O.P. No. 3. During investigation the Investigating Officer made the entries in the case diary that the applicants were removing their property. During investigation the proceedings u/s 82/83. Cr. P.C. were initiated against the applicants. The Investigating Officer has collected the sufficient material disclosing the commission of the offence punishable under Sections 406, 420, 467, 468, 471, I.P.C. and there is sufficient material to proceed further against the applicants. The learned C.J.M. has taken the cognizance after perusing the charge-sheet vide order dated 21.4.2010. Thereafter the N.B.W. has been issued against the applicants because offence is non-bailable and the proceedings u/s 82/83, Cr.P.C. was already intiated. The applicants have failed to establish the ground of malice. In the present application no other reason has been shown to lodge the F.I.R. against the applicants by the O.P. No. 3. The present application is devoid of merit, the same may be dismissed.
Considering the submission made by learned counsel for the applicants, learned A.G.A. and from the perusal of the record it appears that in the present case, there is no denial of execution of agreement to sale of the land by the applicants. There is no denial of acceptance of the earnest money paid by the O.P. No. 3 in the manner as mentioned in the F.I.R. In pursuance of the agreement to sale, the sale deed had not been executed by the applicant No. 1, despite the receipt of the notice sent by the O.P. No. 3. The allegation has been made that the land for which agreement to sale was made has been sold by the applicant No. 1 to some other persons. At this stage, it has been considered that the material collected by the Investigating Officer is sufficient to proceed further against the applicants or not, it has to be considered also that on the basis of the material collected by the Investigating Officer prima facie cognizable offence is made out or not. In these circumstances, it appears that learned Chief Judicial Magistrate, Ghaziabad has not committed any error in taking the cognizance against the applicants vide order dated 21.4.2010 on the basis of the impugned charge-sheet because prima facie cognizable offence is made out and there is sufficient material to proceed further against the applicants. There is no illegality in the submission of the charge-sheet and there is no good ground to quash the impugned charge-sheet. The prayer for quashing the impugned charge-sheet is refused.
However, considering the submission made by learned counsel for the applicants that applicant No. 1 is too old person aged about 86 years and suffering from the various ailments and the applicant No. 2 is his son, it is directed that in case the applicants appear before the court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of expeditiously if possible on the same day by the courts below.
Thereafter in case the applicants move discharge application at the appropriate stage or raise the objection at the time of framing of the charge, the same shall be heard and disposed of in accordance with law.
Interim order dated 6.8.2010 is hereby vacated.
Accordingly this application is finally disposed of.