Mohinder Singh Randhawa vs Harbhajan Singh

K.S. Kumaran, J.

First respondent Harbhajan Singh filed a complaint against the petitionersMohinder Singh alias Bawa and Kanwaljit Kaur before the Judicial Magistrate 1st Class, Jalandhar (annexure P1) under Sections 415, 418, 419, 420, 504, 506 and 120B I.P.C. alleging as follows :

Gurmit Singh Randhawa and his wife Harbarinder Kaur are at present residents of England and have authorised Harbhajan Singh (hereinafter referred to as the complainant) as their General Attorney. The complainant is well conversant with the facts and the fraud committed by the accused. The first accused (first petitioner) is the husband of the second accused (second petitioner). She received the draft and the cash from Gurmit Singh and Harbarinder Kaur. The first petitioneraccused poses himself to be the owner of Kothi No. 1116, Urban Estate, PhaseI, Jalandhar and entered into an agreement dated 29.4.1992 to sell the said house for Rs. 21 lacs. At that time, a sum of Rs. 5 lacs was parted by Gurmit Singh and Harbarinder Kaur. The complainant was the attesting witness. The sale deed was to be executed by the petitonersaccused in favour of the complainant on or before 31.7.1992 on receipt of the balance of Rs. 11,45,000/ before the Sub Registrar, Jalandhar. Gurmit Singh and Harbarinder Kaur authorised the complainant to get the sale deed executed in their favour and they were always ready and willing to perform their part of the contract. Legal notices were issued but the petitonersaccused did not care to appear before the Sub Registrar to perform their part of the contract. A civil suit for specific performance of the agreement was filed and is pending before the Sub Judge, Jalandhar. The petitonersaccused hatched a conspiracy to defeat the rights of the principal of the complainant and filed a civil suit against Gurmit Singh, Harbarinder Kaur and the complainant for declaration that the sale deed dated 7.7.1992 and registered on 7.10.1992 was illegal, void and the result of fraud and not binding upon the second accused. The petitioner accused Mohinder Singh had been assuring that he is the fullfledged owner of the house in question and had authorised the second accused to execute the sale deed in favour of Gurmit Singh and Harbarinder Kaur. On this assurance, Rs. 9,55,000/ have been received by the petitioneraccused. On 15.7.1993, the complainant went and asked the accused to execute the sale deed, but the wife of the accused disclosed that he is the owner to the extent of 1/5th share, which establishes the fraud committed by the petitionersaccused. When the complainant went to the police for registering a case against the accused, the police did not register the case.

The petitionersaccused have, therefore, approached this Court under Section 482 Cr.P.C. for quashing the complaint (annexure P1) and the consequential proceedings alleging as follows :

On the complaint both the petitioners were summoned to face the trial. The matter is purely of civil nature. Gurmit Singh gave an affidavit that he would purchase the land from its 5 legal owners namely, Kanwaljit Kaur Randhawa, Tej Preet Singh Randhwa and others. As per the terms of the agreement (annexure P2), the sale deed was to be executed by 5 persons. On 28.10.1992 the second petitioner filed a civil suit (annexure 5A) against Gurmit Singh, Harbarinder Kaur Randhwa and others challenging the sale deed on the ground that though the consideration for the sale deed was Rs. 21 lacs, a sum of Rs. 1,90,000/ only was paid to the second petitioner. As there are five owners, the sale deed was to be executed by all the five in respect of 1/5th share of each. Although the sale deed was written on 7.7.1992, the same was registered on 7.10.1992 in the absence of the petitioners. Full consideration of this portion was not less than Rs. 7 lacs. The petitioners assured that after receiving the full consideration, they would ask the other coowners to execute the sale deed. The sale deed dated 7.7.1992 was the result of fraud, misrepresentation and was without any consideration. As a counterblast, Gurmit Singh and Harbarinder Kaur through their attorneyHarbhjan Singh filed a civil suit against the petitioners for possession of 4/5th share by way of specific performance of the agreement dated 29.4.1992, which suit is pending. Criminal complaint is liable to be stayed during the pendency of the civil proceedings. The subject matter involved in the civil and criminal proceedings is the same. The decision of the civil Court is binding on the Criminal Court. The complaint is a misuse of the process of Court and is liable to be quashed. No complaint can be filed by a foreigner without the permission of the Government of India and the clearance from the respective Embassy/Reserve Bank. The attorney is not competent to file the Criminal complaint. No offence of forgery is made out.

The first respondentcomplainant filed a reply containing the following allegations apart from the other allegations as are found in the complaint :

The petitioners have not even appeared before the Additional Chief Judicial Magistrate, Jalandhar where the complaint annexure P1 is pending and, therefore, this petition is liable to be dismissed. The matter in dispute is not of a civil nature. At the time of the agreement dated 29.4.1992, petitioner Mohinder Singh Randhawa claimed to be the owner of the entire property and accordingly entered into an agreement. Kanwaljit Kaur was fully aware of the execution of the agreement, but never disclosed the true facts. At the time of filing of the suit, the complainant was not aware of the fraud committed by the accused. On learning about the fraud, the complaint was filed. A prima facie case is made out against the accused and the complaint is not liable to be quashed.

I have heard the counsel for both the sides.

A reading of the complaint prima facie establishes the commission of a cognizable offence since it has been alleged in the complaint that the first petitioneraccused posing himself to be the owner of the whole of the house bearing No. 1116, agreed to sell the same for Rs. 21 lacs, and that the petitioners had received in total a sum of Rs. 9,55,000/. it has also been mentioned that the sale deed was to be executed by the petitionersaccused after receiving the balance of sale consideration of Rs. 11,45,000/ before the Sub Registrar. The complaint specifically states that the amount was received by the second petitioneraccused on behalf of the first petitioner accused. The second petitioner executed a sale deed in respect of 1/5th share after receiving Rs. 1,90,000/ but the sale deed in respect of the remaining 4/5th share was not executed in spite of demand. While the second petitioner has filed a suit for declaring that the sale deed executed by her is void and not binding on her, the complainant has filed a suit on behalf of his principals against the petitioners for specific performance of the agreement and for possession of the 4/5th share against the petitioners 1 and 2. The petitioners contend that since there are civil suits pending, the finding of the civil Court is binding on the Criminal Court. According to the petitioners, there are three other persons who are also owners of the property. The complainant, on the other hand, contends that this was not disclosed by the petitioners at the time of the arguments and, therefore, they have committed a fraud and have also cheated him after having received Rs. 9,55,000/. The contention of the petitioners is that the same questions are involved in the civil suit also and, therefore, the complaint has to be quashed.

The learned counsel for the petitioners relied upon a decision of this Court in Kahla Singh v. State of Punjab, 1986(2) R.C.R 564, and the decision in Rattan Singh v. State of Haryana, 1996(1) R.C.R. 57, wherein the Criminal proceedings were stayed till the decision of the civil suit. But the petitioners have not been able to show that in view of the civil suits pending before the Civil Court, the criminal complaint is not maintainable or it has to be quashed. These decisions have only held that the criminal proceedings should be stayed till the disposal of the civil suit. I have already pointed out that the complaint prima facie shows the commission of a cognizable offence and, therefore, there are no grounds for quashing the criminal proceedings.

Then the question is whether the criminal proceedings should at least be stayed till the disposal of the civil suit ?

The complaint given by the 1st respondent is that the 1st petitioner posed himself to be the owner of the entire house, agreed to sell the same for Rs. 21 lacs, and the petitioners received Rs. 9,55,000/ but did not execute the sale deed and when the complainant approached the accused to execute the sale deed, the second petitioner disclosed at that time that the 1st petitioner was the owner only to the extent of 1/5th share. Therefore, the complainant claims that the petitioners herein have committed fraud and received a huge amount. The second petitioner has filed a civil suit before the Sub Judge, Jalandhar for a declaration that the sale deed executed by her in respect of the 1/5th share is void and not binding on her. The principals through the complainant have filed a civil suit against the petitioners for specific performance of the agreement with regard to the remaining 4/5th share and for possession. This suit is also before the Sub Judge, Jalandhar. One of the questions that will arise for consideration in the complaint as well as the civil suit filed by the complainant against the petitioners will be whether the complainant and his principals were aware of the fact that they had to and were bound to get the sale deed with regard to the remaining share in the house from others. But the further question in the complaint will be as to whether the petitioners have committed fraud upon the complainant and his principals and received Rs. 9,55,000/, by the 1st petitioner posing himself to be the owner of the entire house. Because, according to the complaint, the entire house was agreed to be sold for Rs. 21 lacs. If the petitioners could execute the sale deed only in respect of a portion, then it will have to be decided whether the 1st petitioner could pose himself to be the owner of the entire house and receive Rs. 9,55,000/ for a portion of the house.

Therefore, in these circumstances, I am of the view that, without meaning to express any opinion on the merits of either the complaint or the civil suit filed by the complainant for specific performance, it is only proper that the complaint as well as the civil suit for specific performance filed by the complainant are tried by the same Judge who has power to try the complaint as well as the civil suit for specific performance filed by the complainant on behalf of his principals. The complaint as well as the civil suit for specific performance filed by the complainant will be tried simultaneously by the same Judge and disposed of by different judgments on the same day so as to avoid any inconsistency. But, so far as the suit filed by the second petitioner for declaration that the sale deed obtained from her is void and not binding on her is concerned, the questions that will arise for consideration in that suit are different and will have no bearing upon the other suit for specific performance or the criminal complaint filed by the complainant. But in order to put an end to the entire controversy in this matter and in the interest of justice, I am of the view that the suit filed by the second petitioner for a declaration that the sale deed executed by her is void and not binding upon her, should also be tried by the same Judge, but, of course, simultaneously and disposed of by a separate judgment on the same day when the other suit and the criminal complaint are disposed of.

In view of what I have stated above, it is not necessary either to quash the criminal complaint annexure P1 or to stay further proceedings till the disposal of the civil suits mentioned above.

Accordingly, this petition is disposed of with the direction that the criminal complaint and the two civil suits referred to above will be tried separately, but simultaneously by the same Judge having jurisdiction to try the civil suits as well as the criminal complaint and disposed of at the same time. The District Judge concerned will pass appropriate orders, if necessary, for placing these two civil suits and the criminal complaint before the same Judge/Court who/which has the jurisdiction to try them.