Gagan Kamboj and Another vs State of Punjab and Another

Mehinder Singh Sullar, J.—The epitome of the facts & material, which needs a necessary mention for the limited purpose of deciding the instant petition for anticipatory bail filed by petitioners-Gagan Kamboj alias Lavanya Kamboj and his father Om Parkash Kamboj (since deceased) is that, Ved Parkash Kamboj, Om Parkash Kamboj and Kartar Chand, sons of Karam Chand Kamboj etc., were stated to be the joint owners of the house, bearing No. 675-L, situated in Model Town, Jalandhar. Om Parkash son of Karam Chand Kamboj, petitioner No. 2 (since deceased) had two sons, namely, Gagan Kamboj alias Lavanya Kamboj (petitioner No. 1) and Girish Kamboj (complainant). The multiple litigations between the parties with regard to the ownership of the house, in dispute, was pending in different courts. All the files of litigation were taken up for consideration before a panel of Mega Lok Adalat, in the presence of Hon''ble Mr. Justice M.M. Kumar, the then Administrate Judge of Sessions Division, Jalandhar. The parties have amicably settled their disputes and ultimately, it was decided that Gagan Kamboj alias Lavanya Kamboj (petitioner No. 1) and Girish Kamboj (complainant) will be entitled to the share of 40% each of the sale proceeds of the disputed house, after deducting State and Central Government liabilities, whereas their father Om Parkash Kamboj was also held entitled to the extent of 20% share. Keeping in view the settlement between the parties, an award dated 21.12.2008 (Annexure P-2) was passed by the Presiding Officer, Lok Adalat, which in substance is as under:-

On the other hand, statement of plaintiff-Girish Kamboj along with counsel Sh. Anup Gautam, Advocate recorded to the effect that he has entered into compromise with the defendant-Om Parkash Kamboj and his brother Sh. Lavanya Kamboj alias Gagan Kamboj to the effect that his father would effect the sale of house No. 675L, Model Town, Jalandhar. They have agreed to the share of the sale proceed to the extent of 40% for his brother Gagan Kamboj and 20% for his father Sh. Om Parkash Kamboj. However, his father would be free to execute the sale deed as owner as per compromise. He will withdraw all the civil and criminal litigation from the courts at Jalandhar and he would also withdraw the revision and complaints and applications before the police and civil authorities. He will also appear as witness to the sale deed/agreement to sell to be effected by his father. Neither he nor his wife nor his children will raise any question regarding the transaction effected by his father Sh. Om Parkash Kamboj regarding house No. 675L, Model Town, Jalandhar. On receiving 40% of the sale consideration regarding which they have mutually agreed, he will not be entitled to claim any right or interest in the property No. 675L, Model Town, Jalandhar and he will not claim any right, title or interest on the basis of will executed by Sh. Ved Parkash Kamboj regarding said house. In case, he fails to affix his signature on the sale deed/agreement to sell to be executed by his father after receiving of 40% of sale consideration he will be left with no interest. His share to the extent of 40% will be calculated after deduction to be paid to the State and Central Government. From today, he will not enter into house No. 675L, Model Town, Jalandhar for the next three months. The award may kindly be passed.

In view of the statement of Girish Kamboj legal heir of plaintiff-Ved Parkash, defendant No. 1-Om Parkash Kamboj and Sh. Lavanya Kamboj alias Gagan Kamboj in presence of S/Sh. Sanjeev Bansal and Anup Gautam, Advocates, the award is passed to the effect that defendant No. 1 Om Parkash would execute the sale deed as owner in which both Girish Kamboj and Lavanya Kamboj alias Gagan Kamboj would stand as attesting witnesses. Girish Kamboj and Lavanya Kamboj alias Gagan Kamboj would be entitled to 40% share each and Om Parkash to the extent of 20% share out of the sale proceed after deduction of State and Central Government dues. Plaintiff-Girish Kamboj would not be entitled to claim any right, titled or interest on the basis of will executed by Sh. Ved Parkash Kamboj regarding said house as per his undertaking after receipt of 40% share of his sale proceed. Girish Kamboj-plaintiff is made bound not to enter into house No. 675L, Model Town, Jalandhar for the next three months from today and defendants-Om Parkash and Sh. Lavanya Kamboj alias Gagan Kamboj are directed to execute the sale deed through Om Parkash Kamboj as owner within the period of three months from the date of passing the award. The parties are also made bound with the terms and conditions fully detailed in their respective statements. The parties are directed to withdraw all the civil and criminal cases along with any complaint and application. This award is binding on the parties to the compromise. Award is passed accordingly and file be consigned to the record room.

In pursuance thereof, Om Parkash agreed to sell the house, in question, for a total sum of Rs. 7,34,40,000/- and executed an agreement to sell dated 03.01.2011 (Annexure P-3) in favour of Jinder Singh Aujla and his wife Kashmir Kaur, proposed vendees/co-accused of the petitioners.

Strange enough that, instead of receiving the amount of his share, complainant-Girish Kamboj filed two COCP (contempt of court proceedings) bearing Nos. 475 of 2010 and 2185 of 2011 against the petitioners, which were dismissed by this Court, by means of order dated October 05, 2012 (Annexure P-4).

At the same time, the complainant has also moved a complaint dated 29.09.2011 to the Commissioner of Police, Jalandhar, for registration of case against his brother Gagan Kamboj alias Lavanya Kamboj (petitioner No. 1), father Om Parkash (petitioner No. 2), Jinder Singh Aujla, his wife Kashmir Kaur and others, co-accused, inter alia, on the allegations that the tentative price of the disputed house was fixed by the parties at Rs. 9 crore before the Lok Adalat and since his father-Om Parkash Kamboj had executed the agreement to sell of the said house for a sum of Rs. 7,34,40,000/-, without taking the complainant into confidence, so, they have cheated him, forged and manipulated the agreement to sell, in order to put him (complainant) at loss. In the background of these allegations and in the wake of complaint of the complainant-Girish Kamboj, a criminal case was registered against the petitioners-accused and their other co-accused, vide FIR No. 188 dated 18.12.2012, on accusation of having committed the offences punishable under Sections 406, 420 and 120-B IPC, by the police of Police Station Navi Bara Dari, District Jalandhar, in the manner depicted here-in-above.

Having exercised and remained unsuccessful before the Additional Sessions Judge, now the petitioners-accused Gagan Kamboj alias Lavanya Kamboj and his father-Om Parkash Kamboj, have preferred the present petition for the grant of anticipatory bail, in the indicated criminal case registered against them, invoking the provisions of Section 438 Cr.P.C.

At the very outset, it will not be out of place to mention here that the complainant has also filed various misc. applications for producing irrelevant documents, in order to delay the disposal of the instant petition for anticipatory bail So much so, during the pendency of this petition, Om Parkash Kamboj (petitioner No. 2), father of Gagan Kamboj alias Lavanya Kamboj (petitioner No. 1) and Girish Kamboj (complainant) has died and the petition for anticipatory bail filed by petitioner No. 1 only survives, at this stage.

Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petition for anticipatory bail deserves to be accepted in this context.

Ex facie, the argument of the learned senior counsel for the complainant that, since the petitioner-accused and his other co-accused have cheated him and misappropriated the amount, so, he (petitioner) is not entitled to the concession of anticipatory bail, is not only devoid of merit but misplaced as well.

As is evident from the record that, the entire matter was settled between the parties and an award dated 21.12.2008 (Annexure P-2) was passed by the Presiding Officer, Lok Adalat, wherein, the complainant has agreed to forego his entire claim of the house, in dispute, after receiving 40% share, out of its sale proceeds, after deduction of State and Central Government dues. Now, he cannot possibly be heard to say that he is not bound by the agreement to sell and cannot be permitted to back out of the settlement to nullify the award in these criminal proceedings.

Sequelly, the celebrated contention of the learned senior counsel for the complainant that, the tentative price of the disputed house, was fixed at Rs. 9 crore and since petitioner No. 2-Om Parkash Kamboj had agreed to sell the property for a sum of Rs. 7,34,40,000/-, so, the accused have cheated the complainant, lacks merit as well and deserves to be ignored for more than one reason.

At the first instance, no such tentative price of the house, in question, at Rs. 9 crore was ever fixed in the award (Annexure P-2) of the Presiding Officer. Secondly, as indicated here-in-above, instead of receiving the amount, the complainant has lodged the present complaint and at the same time, he has filed the pointed COCP petitions against the petitioners-accused and others. The complainant has considerably delayed/prolonged the matter and ultimately the contempt petitions filed by him came to be disposed of by a Coordinate Bench of this Court (Rakesh Kumar Garg, J.), by way of order dated October 05, 2012 (Annexure P-4), the operative part of which is as under:-

It may further be noticed that initially the petitioner was being represented by Mr. Siddharth Gupta, Advocate, however later-on, the petitioner appeared in person and thereafter, vide order dated 29th August, 2012 he was granted another opportunity to engage a lawyer. Thereafter, on September 25, 2012, this Court passed the following order:

Mr. Puneet Jindal, Advocate has put in appearance on behalf of the petitioner and has filed his Vakalatnama, which is taken on record.

From the facts on record, it seems that in spite of an award based on a compromise before the Lok Adalat, both the parties are still litigating and accusing each other. It appears that the dispute raised is wholly frivolous. Moreover, from the various orders passed in this petition, conduct of the petitioner is very much clear and prima-facie it seems that he is interested only in prolonging the litigation. In this view of the matter, before proceeding further, this Court is prima facie of the opinion that the parties should be directed to deposit an amount as security that in case either of them is to be burdened with cost, the same can be appropriated from such an amount.

Let both the parties deposit Rs. 2.00 lakh each with the Registrar of this Court before the next date of hearing.

List on 5th October, 2012.

To be shown in the Urgent List.

No further opportunity shall be granted.

However, the parties are given one more opportunity to comply with the terms of the compromise and the award of Lok Adalat.

At the outset, it may be noticed that learned counsel for the respondents has made a statement that in terms of the aforesaid order, respondents have deposited a sum of Rs. 2.00 lakh with the Registry of this Court.

However, the petitioner has failed to comply with the said order and instead an application viz. Civil Misc. 24911-CII of 2012 has been filed in COCP No. 2185 of 2011 to recall the aforesaid order dated September 25, 2012.

After raising some arguments when this Court was not inclined to accept the prayer for recalling of the order dated September 25, 2012, learned counsel for the petitioner submitted that the petitioner be allowed to withdraw both the instant contempt petitions and permitted to pursue Civil Revision No. 703 of 2010 only.

Without further commenting upon the facts of the case, the prayer is accepted and both the present contempt petitions are ordered to be dismissed as withdrawn without prejudice to the rights of the petitioner in Civil Revision No. 703 of 2010.

The money deposited by the respondents be refunded to them by the Registrar on an application made to him in this regard.

Likewise, the mere fact that Tehsildar, Jalandhar, vide report dated 27.02.2013 attached with the affidavit of Jatinder Singh, Assistant Commissioner of Police, Jalandhar, has estimated the value of the disputed house at Rs. 24 lacs per Marla, ipso facto, is not a ground, much less cogent, to nullify the agreement to sell, permanent settlement between the parties and an award of Lok-Adalat. This is no ground to deny the concession of anticipatory bail to the present petitioner, particularly when the bare perusal of the interim order passed by this Court in CRM No. M-22148 of 2009 (reproduced in para 9 of the main petition), would reveal that sufficient opportunities were granted to the complainant by this Court, to find out and one prospective buyer was present in the court, who was ready to buy the house, in dispute, only for Rs. 6,70,00,000/-. The complainant could not find any buyer, who was ready to pay the more amount, than the consideration amount mentioned in agreement to sell (Annexure P-3).

Meaning thereby, it stands proved on the record that it was the complainant, who is at fault and intends to illegally drag the petitioner into false litigation, in order to wreak vengeance. Moreover, such intricate questions/disputes raised by the complainant with regard to the validity or otherwise of the agreement to sell and award of the Lok Adalat, are purely of a civil nature, relating to which, he has already filed a civil suit for declaration (Annexure P-13), to challenge the agreement to sell dated 03.01.2011 against the accused (proposed vendor and vendees), which is still pending. Now, the complainant intends to execute a nonexistent decree by filing the present criminal petition against the accused, which perhaps is not legally permissible.

Above all, during the course of preliminary hearing, interim bail was granted to enable the petitioner, to join the investigation by a Coordinate Bench of this Court (Vijender Singh Malik, J.), by virtue of order dated 29.01.2013.

At this stage, on the instructions from ASI Sanjiv Kumar, learned State Counsel has acknowledged the factual matrix and submitted that the petitioner has already joined the investigation. He is no longer required for further interrogation, at this stage. There is no history of his previous involvement in any other criminal case. All the offences alleged against the accused are triable by the Court of Magistrate. Since, even the police has not yet submitted the final police report (challan), so, the conclusion of trial will naturally take a long time.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. In the light of aforesaid reasons, taking into consideration the totality of the peculiar facts and in the special circumstances of the present case, emanating from the record, as discussed here-in-above and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, the instant petition for anticipatory bail is accepted. The interim bail already granted to the petitioner by this Court, by means of order dated 29.01.2013, is hereby made absolute, subject to the compliance of the conditions, as contemplated u/s 438(2) Cr.P.C.

Needless to mention that nothing observed, here-in-above, would reflect on the merits of the main case, in any manner, as the same has been so recorded for a limited purpose of deciding the present petition for anticipatory bail only. At the same time, the petitioner is directed to join the investigation as and when required to do so by the investigating agency, failing which, the prosecution would be at liberty, to move a petition for cancellation of his bail, in this regard.