Tabir-Ul-Huq vs State of Punjab

Rekha Mittal, J.—The present petition u/s 482 of the Code of Criminal Procedure (for short "Cr.P.C") has been filed for quashing FIR No. 09 dated 13.1.2011, registered at Police Station, Zirakpur, District SAS Nagar for offence punishable u/s 420 of the Indian Penal Code (for short "IPC") (Annexure P-1) and proceedings emanating therefrom.

Counsel for the petitioner contends that the petitioner was serving as a Member Secretary to Diocesan Trust Association, Amritsar (hereinafter referred to as "the trust"). On 5.10.2005, a resolution was passed by the trust to appoint the petitioner as general attorney authorizing him to sell, lease, transfer, exchange etc. property of the trust. On 22.11.2005, the petitioner got the general power of attorney registered in his favour from the office of Sub Registrar in pursuance of resolution dated 5.10.2005. The petitioner as an attorney of the trust entered into an agreement to sell dated 23.9.2006 with respondent No. 2 (complainant) in regard to land in dispute for a total sale consideration of Rs. 1,42,00,000/- per acre out of which a sum of Rs. 15 Lakhs was agreed to be paid at the time of execution of agreement to sell towards earnest money. A sum of Rs. 5,00,000/- was paid in cash and a cheque of Rs. 10,00,000/- bearing No. 299002 dated 23.9.2006 drawn on HDFC bank, Chandigarh was issued by the complainant in favour of the petitioner. The aforesaid cheque was dishonoured vide memo dated 3.10.2006 with the remarks "insufficient funds". After dishonour of the cheque, the petitioner approached the complainant who assured him to make the payment shortly. Respondent No. 2 failed to make payment of the cheque amount which shows that he was never ready and willing to perform his part of the contract nor did he ever bothered to abide by the terms of the agreement. The petitioner, despite failure of the respondent to make payment of the cheque amount got served legal notices to respondent No. 2 on 4.3.2010 (Annexure P-8) and 18.3.2010 (Annexure P-9) calling upon him to perform his part of the agreement as the petitioner was ready to perform his part of the agreement. It is further argued that respondent No. 2 is guilty of committing breach of the terms and conditions of the agreement and the instant FIR has been lodged to put pressure upon the petitioner to refund Rs. 5,00,000/- Lakhs admittedly paid by respondent No. 2 in regard whereof he has also filed a civil suit pending in the Court at Dera Bassi. It is argued with vehemence that even if the petitioner has failed to perform his part of the obligation in compliance with the terms and conditions of the agreement to sell, the same, at best, gives rise to civil dispute which has been sought to be given colour of criminal act. The last submission made by counsel is that there is nothing on record to suggest that there was an element of cheating in the transaction of sale since its inception to attract mischief of Section 415 IPC, to constitute offence punishable u/s 420 thereof.

Counsel for respondent No. 2, on the contrary, contends that the petitioner has sought to raise disputed questions of fact which cannot be decided in proceedings u/s 482 Cr.P.C. It is further argued that the petitioner agreed that within 15 days of the agreement to sell, he will get a resolution passed from the trust for the sale of the land but failed to do so. The petitioner also failed to get the necessary clearance(s) to facilitate registration of the sale deed in favour of the complainant and these facts show that the petitioner had a deceitful intention at the time of entering into agreement to sell whereby he induced the complainant to part with huge amount of Rs. 5,00,000/-.

I have heard counsel for the parties and perused the records.

In order to constitute offence punishable u/s 420 IPC, the complainant has to prove essential ingredients of offence of cheating defined in Section 415 IPC and those ingredients are extracted hereinbelow:-

i) deception of a person either by making a false or misleading representation or by other action or omission;

ii) fraudulently or dishonestly inducing any person to delivery and property; or

iii) to consent that person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

Counsel for respondent No. 2 has not disputed that cheque of Rs. 10 Lakhs bearing No. 299002 dated 23.9.2006 drawn by the complainant towards part payment of earnest money of Rs. 15,00,000/- (Rs. 5,00,000/- paid in cash) got dishonoured on 3.10.2006 and the complainant has not made payment of the cheque amount till date. Once the cheque issued by the complainant towards part payment of earnest money got dishonoured within a period of 10 days from the date mentioned thereon, the complainant cannot be allowed to find fault even if there was lapse on the part of the petitioner in getting certain formalities completed for executing the sale deed in his favour. Without entering into this controversy as to who has defaulted in performing his part of the contract, lest it may cause prejudice to the parties in the litigation pending before the civil court, I am of the considered opinion that even if the petitioner has failed to discharge his obligation under the agreement to sell, it gives rise to a civil dispute and the complainant has already taken recourse to civil proceedings seeking refund of Rs. 5,00,000/- along with interest thereon. There is nothing on record to suggest that the petitioner entered into an agreement to sell with a deceitful intention to cause wrongful gain to himself and wrongful loss to the complainant. When the facts and circumstances of the present case are examined in the light of judgment of Hon''ble the Supreme Court in Md. Ibrahim and Others Vs. State of Bihar and Another, I find force in the contention of the petitioner that no case for committing offence punishable u/s 420 IPC is made out against the petitioner. Under these circumstances, it can be safely held that the criminal proceedings initiated by the respondent are nothing but an abuse and misuse of process of law and liable to be quashed.

For the aforesaid reasons, the petition is allowed. FIR No. 09 dated 13.1.2011, registered at Police Station, Zirakpur, District SAS Nagar for offence punishable u/s 420 IPC (Annexure P-1) and proceedings emanating therefrom are ordered to be quashed.