Vishnu Kumar Goel vs State of Haryana and Another

Sabina, J.—Petitioner has preferred this petition u/s 482 of the Code Criminal Procedure, 1973 seeking quashing of the FIR No. 309 dated 10.6.2003 registered under Sections 420, 467,471 and 120B of the Indian Penal Code (`IPC'' for short) at Police Station City Jagadhri, District Yamuna Nagar (Annexure P5)and order dated 21.3.2007 (Annexure P8) passed by the Additional Chief Judicial Magistrate, Jagadhri. The relevant contents of the FIR in question read as under:-

Sir, the applicant respectfully submits as under:(1) That the accused No. 1 is the real brother-in-law (Behanoi) of the applicant and the accused Nos. 2 and 3 are the real brothers of the applicant. (2) That the applicant is the owner in possession as co-sharer of the agricultural land situated in Mauza Jagadhri, District Yamuna Nagar with his brothers and accused Nos. 2 and 3 (3) That the applicant appointed the accused No. 1 as his General Attorney vide General Power of Attorney dated 27.6.2002 and similarly the accused No. 1 this all was done in order to settle the misunderstandings in the family, the accused No. 1 being the common relative of the applicant and the accused No. 2 and 3 was appointed as General Attorneys in the said General Power of Attorney dated 27.6.2002 of the applicant the description of the land was specifically mentioned in order to avoid any further complaint. (4) That all the accused in furtherance of their common intention hatched a conspiracy to put loss to the applicant and they started negotiations to alienate the share of the applicant in the said land stated above and an agreement to sell was executed by the accused No. 1 in favour of one Shri Harsish Kumar son of Sh. Ghansham Dass resident to Jagadhri and when this agreement to sell come to the knowledge of the applicant then the applicant doubted the integrity and intention of the accused No. 1 in the said agreement to sell neither the total area of the land was mentioned nor the amount was mentioned nor the rate has been mentioned nor any earnest money has been mentioned which showed the malafide intention of the accused No. 1 (5) That the applicant keeping in view the above said malafide intention of the accused No. 1 got the above said General Power of Attorney dated 27.6.2002 cancelled on 11.11.2002 and prior to that cancellation, the accused No. 1 was very much informed that the applicant is going to cancel the said General Power of Attorney and after getting the same cancelled through Registered Cancellation Deed dated 11.11.2002, the applicant again informed the accused No. 1 telephone regarding cancellation of the said General Power of Attorney and also sent the information regarding cancellation of the General Power of Attorney to the accused No. 1 through courier and this cancellation was also got published by the applicant by the News Paper 18.11.2002 published on 19.11.2002 (6) That all the accused in furtherance of their common intention to put the applicant to loss got executed and registered lease deed and for 99 years of the share of the applicant on 12.11.2002 and then got executed and registered a release deed on 18.11.2002 regarding the share of the applicant. All the accused persons were aware of this fact that the accused No. 1 is no more General Attorney of the applicant and were having reason to believe that the accused No. 1 was not competent to execute the lease deed and release deed dated 12.11.2002 and 18.11.2002 respectively in favour of any person including the accused Nos. 2 and 3 (7) That despite the telephonic message and message through courier to the accused No. 1 by the applicant and despite the publication of the cancellation of the General Power of Attorney dated 27.6.2002 in the News Paper published on 19.11.2002 all the accused in furtherance of their common intention stated above also got the mutation No. 7801 and 7803 on the basis of lease deed dated 18.11.2002 and release deed dated 18.11.2002 respectively entered and attested and hence the intention of the accused persons is clear. (8) That may be submitted here that the applicant had given the above said General Power of Attorney dated 27.6.2002 in respect of specific land and the area has also been mentioned in the same but despite that the accused persons got the said deeds i.e. lease deed and release deed fabricated for more land than given in the said General Power of Attorney it shows the malafide intention of the accused persons. (9) That by the above said acts all the accused persons in furtherance of their common intention have committed offence u/s 420, 467, 120B IPC, it is, therefore, respectfully prayed that the case may kindly be registered against the above said persons. Sd/-Atul Kumar.

Learned counsel for the petitioner has submitted that in the civil proceedings, complainant had failed to establish that the general power of attorney in question was tampered with or that Sanjay Kumar had fraudulently transferred the entire property of the complainant in favour of petitioners-Vishnu Kumar Goel and Amarjit Singh @ Amandeep Singh.

Learned counsel for respondent No. 2, on the other hand, has submitted that in the civil proceedings, it was held that the general power of attorney was correct as no plea qua tampering had been taken in the plaint, whereas, the complainant could establish in the criminal proceedings that the general power of attorney had been tampered with.

It has been held in R.S. Raghunath Vs. State of Karnataka and another, 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 u/s 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, 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 u/s 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 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 u/s 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.

After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed.

A perusal of the FIR reveals that the dispute in the present case relates to the general power of attorney dated 27.6.2002 which was cancelled on 11.11.2002. The cancellation deed was published on 19.11.2002 in the Newspaper. The case of the complainant is that despite the cancellation of the general power of attorney, lease deed dated 12.11.2002 and release deed dated 18.11.2002 qua the share of the complainant had been executed by the accused. Parties are closely related to each other. Petitioner is the brother of the complainant. Accused-Sanjiv Kumar is the brother -in-law of the complainant, whereas, accused Sanjay Kumar is the brother of the complainant. Complainant had filed a suit for declaration and permanent injunction against the petitioner and his co-accused and others with regard to the land in question.

Issue No. 2A framed by the trial Court vide order dated 14.9.2007 reads as under:-

Whether the defendant No. 1 fraudulently transferred the entire property of the plaintiff in favour of defendants No. 2 and 3 as per sale deed dated 12.11.2002 and 10.11.2002?OPP

The trial Court while dealing with the said issue held that the plaintiff-complainant had failed to prove that the cancellation of power of attorney was in the knowledge of Sanjiv Kumar at the time of execution and registration of the lease deed and release deed. So far as argument qua tampering of the general power of attorney dated 27.6.2002 is concerned, the trial Court in para 31 of the judgment has held as under:

The plaintiff during the course of arguments has also submitted that the General Power of Attorney dated 27.6.2002 had been tampered by defendants No. 1 and 2 in collusion with defendant No. 8 and one of the Khasra Number was changed from 2 Knala 16 Marla to 21 Kanal 16 Marla however, the plaintiff in the whole of his plaint has neither raised any such pleading nor has challenged the general power of attorney dated 27.6.2002. In fact, the plaintiff has not even sought any relief against defendant No. 8. The plaintiff has no where submitted that the General Power of Attorney dated 27.6.2002 was not issued qua the land mentioned therein and it is either the attorney holder or the beneficiaries, who have tampered the same. In the absence of any challenge to the document and in absence of any specific pleadings of the plaintiff to that effect such a contention of the plaintiff cannot be accepted. It is a settled law that no amount of evidence, which is beyond pleadings, can be taken into consideration how so material or important that may be. The plaintiff in his plaint has admitted the correctness of the General Power of Attorney thus, he cannot be allowed to challenge the same during the course of arguments.

Thus, the civil Court has given the finding that the general power of attorney executed by the complainant in favour of Sanjiv Kumar was not tampered with and he was not aware of the cancellation deed at the time of execution of release deed dated 18.11.2002 executed by Sanjiv Kumar in favour of the petitioner and lease deed dated 12.11.2001 executed by Sanjiv Kumar in favour of Sanjay Kumar. The same dispute is the foundation of the FIR in question. Since the Civil Court has already given a finding against respondent No. 2 in the civil suit vide judgment dated 10.1.2012 (copy of the same has been placed on record), 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. 309 dated 10.6.2003 registered at Police Station Jagadhri District Yamuna Nagar under Sections 420,467,471 and 120B IPC (Annexure P5) and order dated 21.3.2007 (Annexure P8) alongwith consequential proceedings arising there from are quashed.