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Anand Kumar vs State Of Haryana And Anr on 28 September, 2018

CRM-M No.12521 of 2016 (OM) and
CRM-M No.7492 of 2016 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Decided on: 28.09.2018

1. CRM-M No.12521 of 2016

Anand Kumar
….Petitioner
Versus
State of Haryana and another
….Respondents

2. CRM-M No.7492 of 2016

Rajni Rampal and another
….Petitioners
Versus
State of Haryana and another
….Respondents

CORAM: HON’BLE MR JUSTICE ARVIND SINGH SANGWAN

Present : Mr. P.S. Ahluwalia, Advocate
for the petitioners (in both the petitions)

Mr. Naveen Sheoran, DAG, Haryana (in both the petitions)

Mr. Karanvir Nanda, Advocate
for respondent No.2 (in both the petitions)

ARVIND SINGH SANGWAN, J.

By way of this common order, I shall dispose of the

aforesaid petitions as common questions of law and facts are involved

for adjudication.

Prayer in both these petitions is for quashing of FIR

No.292 dated 10.08.2015 (Annexure P1) registered under Sections 406,

420, 467, 468, 471, 506, 120-B of the Indian Penal Code, 1860 (in short

‘IPC’) and 3/32 of the Haryana Protection of Interest of Depositors in

Financial Establishment Act, 2013/2014, along with all consequential

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proceedings arising therefrom.

CRM-M No.12521 of 2016 has been filed by the petitioner

– Anand Kumar, Director of M/s. Hanumanta Land Promoters Private

Limited whereas CRM-M No.7492 of 2016 has been filed by Rajni

Rampal and Karan Kumar, wife and son of the aforesaid petitioner –

Anand Kumar.

Brief facts of the case as per the allegations in the FIR are

as under:-

“Anand Kumar and Rajbir Singh Sodhi have floated a
project to construct flats under the name and style of
Micro Home Projections in a land situated in Khasra
No.32//16/1, 16/2, 16/3, 17, 25/1 and 25/2, 3/7 th share
measuring 06 kanal and 10 marlas in village Jhandpur,
Desumajra Road, Kharar, District S.A.S. Nagar, Mohali.

The project was also advertised in various newspapers and
the brochures were also issued. The accused persons are
also running their said business at House No.596, Sector
4, Panchkula and also booking the flats and receiving
money from the people. The complainant resides just near
the said house and the accused persons contacted the
complainant and stated that they would give a flat to him
@ Rs.13 lacs for 2 BHK flat and asked the complainant to
invest money in the said project. The complainant,
thereafter, invested money for 03 flats on their inducement
and gave Rs.39 lacs in cash to the accused persons vide 03
agreement of sale dated 02.12.2014 and receipt in this
regard was also issued. The said agreements dated
02.12.2014 were executed by accused – Anand Kumar and
Rajbir Singh as seller and the complainant, his son Aakash
and Sahil, respectively. The khasra numbers of the said
land are also mentioned in the agreements and it was

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agreed that the vacant possession of the flats complete in
all respects be provided to the complainant within a period
of 01 year and it was also stated therein that M/s.
Hanumanta Land Promoters Private Limited was bound to
buy back the said flats @ Rs.13,25,000/- on 28.02.2015.
There was no progress in construction of the flats and the
complainant several times visited the office of accused
persons in order to know the progress of construction but
the accused persons put off the matter by making false
excuses and assurance. At last, the complainant asked for
return of the entire amount so invested by him in 03 flats
but on long persuasion, the accused persons agreed to
return the amount on or before 15.03.2015 in terms of the
agreement @ Rs.13.25 lacs per flat. Despite all this, the
accused persons did not return the said amount.
Thereafter, the complainant came to know that the accused
persons have further sold their project and land to one
Jarnail Singh Bajwa son of Sh. Bishan Singh, Managing
Director of M/s. Bajwa Developers Limited, Sunny
Enclave Desumajra, Tehsil Kharar, District S.A.S. Nagar,
Mohali and have executed an agreement to sell dated
26.04.2015. The said fact was also confirmed by Jarnail
Singh Bajwa. The complainant, thereafter, approached the
accused persons for return of his entire amount so paid by
him but they refused to pay the same and asked him to
approach Jarnail Singh Bajwa in this regard. When the
complainant approached Jarnail Singh Bajwa, he also
refused to return the amount. The complainant had been
approaching the accused persons as well as Jarnail Singh
Bajwa time and again but his amount has not been
returned back and, thus, the present FIR has got been
registered by the complainant.”

Counsel for the petitioner(s) has submitted that the

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petitioner – Anand Kumar had earlier filed a petition i.e. CRM-M

No.35327 of 2015, seeking anticipatory bail, in which the following

order was passed on 08.12.2015 in presence of the counsel representing

the complainant:-

“Present: Mr. Preetinder Singh Ahluwalia, Advocate
for the petitioner.

Mr. Rajiv Doon, AAG, Haryana
for the respondent/State
along with Inspector Sukhvinder Singh.
Mr. Karan Vir Nanda, Advocate and
Mr. Mohan Sharma, Advocate
along with the complainant.

****
During the course of hearing, the dispute
between the petitioner and the complainant, who is present
in person, regarding the purchase of three Flats, has been
resolved.

The complainant states that he wants his
principal amount to be refunded.

In response, learned Counsel for the
petitioner undertakes to refund a sum of total Rs.39 Lacs
by way of demand draft to the complainant towards full
and final settlement regarding the purchase of three Flats.

List on 22.12.2015 for further consideration.
To be taken up in the Urgent List.

In the meanwhile, the petitioner along with
the I.O. would get the accounts defreezed so as to enable
the preparation of the aforesaid demand draft.

December 08, 2015 ( JASWANT SINGH )
JUDGE”

Thereafter, on the subsequent date i.e. 25.02.2016, again in

presence of the counsel representing the complainant, the following

order was passed:-

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“Present:- Mr. Preetinder Singh Ahluwalia, Advocate
for the Petitioner.

Mr. Kuldip Tiwari, Additional Advocate
General, Haryana assisted by
Inspector Sukhwinder Singh.

Mr. Karanvir Nanda, Advocate
for the Complainant.

***
JASWANT SINGH, J (ORAL)
Principal Director controlling the affairs of
the company on whose behalf the alleged cheating is
alleged to have been committed with the
investor/complainant has prayed for grant of anticipatory
bail in case FIR No.292 dated 10.08.2015 for offences
punishable under Sections 406, 420, 467, 468, 471, 506
and 120-B and 506 of Indian Penal Code and Section 3/32
of HPIDFE Act, 2014.

As per allegations in the FIR the private
company engaged in the business of construction and sale
of flats, has sold three flats to complainant without
disclosing that the land upon which they are to be
constructed was under mortgage with the bank.

That this Court while issuing notice of motion
and granting interim protection vide order dated
14.10.2015 had taken into account the readiness and
willingness of the petitioner to amicably settle the claim of
the complainant.

On the next date of hearing on 08.12.2015,
the issue raised by the complainant regarding purchase of
three flats stood resolved on the undertaking by the
petitioner to refund a total sum of Rs.39 lacs to the
complainant towards full and final settlement regarding
the purchase of said three flats.

At the time of hearing today, learned Counsel
for the complainant has been handed over the remaining
amount of Rs.3,15,000/- by way of demand draft

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no.005847 dated 23.02.2016 of Bank of India and thus the
entire Rs.39 lacs stands refunded to the complainant. He
very graciously states that the entire claim of the
complainant regarding the purchase of aforesaid three
flats stands settled and relinquished.

Learned State Counsel assisted by Inspector
Sukhwinder Singh submits that in view of the aforesaid
stand, the custodial interrogation of the petitioner is no
longer required.

In view of the above, interim protection/pre-
arrest bail granted vide order dated 14th of October, 2015
is made absolute.

Petition stands disposed of.

February 25, 2016 ( JASWANT SINGH )
JUDGE”

Counsel for the petitioner(s) has submitted that the

payment of the aforesaid amount of Rs.39 lacs was made to the

complainant with a clear understanding that the same is towards full

and final settlement regarding the purchase of 03 flats by the

complainant and, therefore, the present petitions are filed praying for

quashing of the FIR on the basis of the settlement arrived at between

the parties. It is further submitted that during the pendency of the

present petitions, the complainant/respondent No.2 has refused to

acknowledge the compromise and has also refused to appear before the

trial Court to record statement.

Counsel for the petitioner(s) has relied upon the judgment

“Mohd. Shamim vs Smt. Nahid Begum”, 2005(1) RCR (Criminal)

697, wherein the Hon’ble Supreme Court has held as under:-

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“10. Before us, there is no denial or dispute as regard the
factum of entering into the aforementioned settlement
dated 14.11.2002. In the said deed of compromise it has
categorically been averred that the same had been entered
into on the intervention of S.N. Gupta, Additional Sessions
Judge, Delhi. It has also been accepted that out of sum of
Rs. 2,75,000/-, a sum of Rs. 2,25,000/- has been paid to the
First Respondent herein and the balance amount of Rs.
50,000/- would be paid at the time of complainant’s
making statement and no objection for quashing the FIR,
which was retained in the court as per the direction of the
court. It has further been averred that no dispute remained
between the parties regarding the payment of dower
amount (Mehar), dowry articles, including the alleged
jewellary gift etc.

11. In view of the fact that the settlement was arrived at
the intervention of a judicial officer of the rank of the
Additional Sessions Judge, we are of the opinion, the
contention of the First Respondent herein to the effect that
she was not aware of the contents thereof and the said
agreement as also the affidavit which were got signed by
her by misrepresentation of facts must be rejected. In the
facts and circumstances of this case, we have no doubt in
our mind that the denial of execution of the said deed of
settlement is an afterthought on the part of the Respondent
No. 1 herein.

12. Ex facie the settlement between the parties appears to
be genuine. If the contention of the First Respondent
herein is to be accepted, she would not have accepted the
sum of Rs. 2,25,000/- and in any event, she could have
filed an appropriate application in that behalf before the
Court of S.N. Gupta, Additional Sessions Judge, Delhi.
What was least expected of her was that she would return
the said sum of Rs. 2,25,000/- to the Appellants herein.

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13. Section 406 is a compoundable offence with the
permission of the court. It is true that Section 498A Indian
Penal Code is not compoundable.

14. This Court in Ruchi Agarwal v. Amit Kumar Agrawal
Ors., 2004(4) RCR(Crl.) 949 (SC) : [2004(8) Supreme
525], in almost a similar situation has quashed a criminal
proceeding against the husband, stating :

“…Therefore, we are of the opinion that the
appellant having received the relief she wanted
without contest on the basis of the terms of the
compromise, we cannot now accept the argument of
the learned counsel for the appellant. In our
opinion, the conduct of the appellant indicates that
the criminal complaint from which this appeal arises
was filed by the wife only to harass the respondents.

8. In view of the above said subsequent events and
the conduct of the appellant, it would be an abuse of
the process of the court if the criminal proceedings
from which this appeal arises is allowed to
continue…”

15. In view of the conduct of the First Respondent in
entering into the aforementioned settlement, the
continuance of the criminal proceeding pending against
the Appellants, in our opinion, in this case also, would be
an abuse of the process of the court. The Respondent No.
1, however, would be entitled to withdraw the sum of Rs.
50,000/- which has been deposited in the court. We,
therefore, in exercise of our jurisdiction under
Article 142 of the Constitution of India direct that the
impugned judgment be set aside. The First Information
Report lodged against the Appellants is quashed. The
Appeal is allowed. However, this order should not be
treated as a precedent.

Appeal allowed.”

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It is, thus, submitted on behalf of the petitioner(s) that

despite the fact that the total amount of Rs.39 lacs received by the

complainant @ Rs.13 lacs per flat, he is now backing out of the

compromise, therefore, the conduct of the respondent be noticed that

after receiving the money, he has refused to make statement with

respect to the compromise.

Counsel for the petitioner(s) has further relied upon the

judgment “Sandip Somany vs State of Haryana and another”, 2016(2)

Law Herald 1305, wherein in similar circumstances, a complainant

after refusing to acknowledge the compromise, this Court relying upon

the aforesaid judgment of the Hon’ble Supreme Court has held that

continuation of the proceedings in pursuance to the FIR is nothing but

misuse of process of law qua the accused, who on representation of the

said complainant have entered into the compromise and made the

payment.

Counsel for the petitioner(s) has further argued that as per

the allegations in the FIR, there are no direct allegations against the

petitioner – Rajni Rampal and Karan Kumar and they have been

implicated in the present case, only on account of the fact that they are

wife and son of the Director i.e. the petitioner – Anand Kumar.

Reply by way of similar affidavits of the Deputy

Superintendent of Police, State Crime Branch, Headquarter, Panchkula

dated 06.02.2017, are filed separately in both the present petitions.

In the affidavit, it is stated that after registration of the FIR,

the investigation was carried out by Inspector Sukhwinder Singh, State

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Crime Branch, Ambala and this Court vide order dated 29.10.2015

passed in CRM-M No.30523 of 2015 had granted anticipatory bail to

the petitioners – Rajni Rampal and Karan Kumar and the petitioner –

Anand Kumar, who had filed CRM-M No.35327 of 2015 seeking

anticipatory bail had paid the entire principal amount of Rs.39 lacs to

the complainant till its final disposal on 25.02.2016. However, it is

prayed that the petitions be dismissed.

It is worth noticing that both these petitions are pending

since 2016 and till date, no reply has been filed on behalf of respondent

No.2 despite availing number of opportunities.

Counsel for respondent No.2 has, however, submitted that

the petitioner has only repaid the principal amount and he has a right to

recover the interest thereon. It is also submitted that before the trial

Court, the proceedings to declare the petitioner as proclaimed offender

are pending.

In reply, counsel for the petitioner(s) has submitted that on

12.04.2016, this Court has directed the trial Court to submit the

information regarding pendency of other cases against the petitioner or

that the petitioners were ever declared as P.O., in the present case.

Counsel for the petitioner(s) has further submitted that

thereafter on 28.05.2016, further proceedings in the present FIR were

stayed by this Court in CRM-M No.12521 of 2016.

A perusal of the report submitted by the trial Court on

25.05.2016 show that no other case was pending against the accused –

Anand Kumar and he was not declared as proclaimed offender in the

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present FIR, however, it was submitted that none of the parties have

appeared before the Chief Judicial Magistrate, Panchkula for recording

their statements with respect to the compromise on 20.05.2016 or any

other date prior thereto and no further application has been moved in

this regard.

After hearing the counsel for the parties, I find merit in the

present petitions for the following reasons:-

1. It is undisputed that the
complainant/respondent No.2 – Anil Kumar Bhalla had
received Rs.39 lacs i.e. @ Rs.13 lacs per flat for the
purchase of 03 flats from M/s. Hanumanta Land
Promoters Private Limited, in which the petitioner –
Anand Kumar is a Director.

2. During the pendency of CRM-M No.35327
of 2015, filed by the petitioner – Anand Kumar, praying
for anticipatory bail, an offer was made as noticed in the
order dated 08.12.2015 that he will refund the amount of
Rs.39 lacs by way of a demand draft to the complainant
towards full and final settlement regarding the purchase
of 03 flats and the Investigating Officer was directed to
defreezed the account in order to enable the petitioner to
prepare the demand draft.

Thereafter, on 25.02.2016, the complainant
through his counsel accepted that the total amount of
Rs.39 lacs stands refunded to the complainant and a
demand draft of Rs.3,15,000/-, which was the remaining
payment pending as on that date was also handed over to
the complainant. This Court noticed the fact that counsel
for the complainant had very graciously stated that “the
entire claim of the complainant regarding purchase of the
aforesaid 03 flats stands settled and relinquished.”
Therefore, at a subsequent stage, the complainant cannot

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re-agitate that he has not received the entire amount
towards full and final settlement or that any amount
towards interest is still pending.

It is worth noticing that the counsel representing
the complainant in the present case also represented the
complainant in the aforesaid anticipatory bail
application i.e. CRM-M No.35327 of 2015 and had made
the aforesaid submissions as noticed above.

3. Till date, no reply on behalf of respondent
No.2 has been filed despite availing number of
opportunities, which itself show that the
respondent/complainant probably has no defence to deny
the fact of receiving the amount of Rs.39 lacs as full and
final settlement arrived at between the petitioner(s) and
the complainant and, therefore, the averments of the
petitioner regarding the compromise goes unrebutted.

4. Even otherwise, in the affidavit filed by the
Deputy Superintendent of Police, State Crime Branch,
Headquarter Panchkula dated 06.02.2017, the payment
of Rs.39 lacs made by the petitioner to the complainant is
not denied.

5. In view of the judgment of the Hon’ble
Supreme Court in Mohd. Shamim’s case (supra), it is
now well settled that if a party after accepting the amount
in terms of a settlement and later on, backed out from the
same, the continuation of criminal proceedings would be
an abuse of process of Court.

Similar view has been taken by the Hon’ble
Supreme Court in “Ruchi Aggarwal vs Amit Kumar
Aggarwal and others”, 2004(4) RCR (Criminal) 949 (SC)
as relied upon in Mohd. Shamim’s case (supra).

In view of what has been discussed hereinbefore, both

these petitions are allowed, the impugned FIR No.292 dated 10.08.2015

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(Annexure P1) registered under Sections 406, 420, 467, 468, 471, 506,

120-B IPC and 3/32 of the Haryana Protection of Interest of Depositors

in Financial Establishment Act, 2014 and subsequent proceedings

arising therefrom are, accordingly, quashed.

(ARVIND SINGH SANGWAN)
JUDGE
28.09.2018
yakub
Whether speaking/reasoned Yes/No

Whether reportable: Yes/No

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