Kuldip Singh, J. - (1.) FIR No. 8 dated 19.1.2012 under Sec. 420 read with Sec. 34 IPC has been registered at PS Division No. 2 Pathankot, District Gurdaspur against the present petitioners, namely, Smt. Sudarshan Nayyar, her son Manuj Nayyar and daughter -in -law Upma Nayyar on the complaint of Bakhtawar Singh son of Jasbir Singh - respondent No. 2.
(2.) The summary of the allegations is that according to Bakhtawar Singh complainant, Manuj Nayyar petitioner, approached him in January 2008 impressing upon him that his mother Smt. Sudershan Nayyar is the sole proprietor of M/s. S.N. Enterprises and they are in dire need of the money and want to sell property bearing Khewat No. 305, Khatoni No. 601, Khasra No. 226, 227 to the extent of 40/86th share measuring 40 marlas situated in Dhangu road, Pathankot. Accordingly, they entered into an agreement with the complainant on 11.4.2008 for sale of the said land for total sale consideration of Rs. 2,75,00,000/ - payable by 5.5.2010. Earnest money of Rs. 25 lacs was paid. A further sum of Rs. 75 lacs was paid to all the three petitioners (accused) by way of cheque and cash, which was duly credited in their bank accounts. At the time of agreement, all the accused/petitioners had assured the complainant that property in question is free from all kind of encumbrances and no litigation is pending and no case has been decided against them by any Court till date. No document concerning the property in dispute was shown to the complaint at the time of execution of the agreement. It was assured that before receiving more money beyond Rs. 25 lacs and before the execution of the sale deed, the entire documents of the property shall be handed over to him in original. When despite waiting endlessly and despite continuous demand, the documents were not handed over, the complainant demanded Rs. one crore back along with interest @ 18% per annum. However, Rs. one crore was not refunded nor the documents of ownership of the property were handed over to the complainant. The complainant then approached the Halqa Patwari of the area and procured the copy of the jamabandi in which it was revealed that M/s. S.N. Enterprises is not the owner of any part of the property in question, whereas the property is owned by six owners to the extent of 1/6th share each, namely, Rattan Chand (husband of Sudershan Nayyar), Sagar Chand, Dwarka Nath, Rajinder Mohan and Raj Kumar son of Kishan Chand and Bimal daughter of Kishan Chand. It was further revealed that the property is under litigation in the civil Court at Pathankot since the year 2007 and also before Divisional Commissioner, Jalandhar. It was stated that all the accused/petitioners were aware of the entire dispute and they have cheated the complainant of Rs. one crore. Therefore, it was alleged that the petitioners have defrauded the complainant. The complaint was dated 23.8.2011. After the receipt of the complaint, an inquiry as conducted by the police and after conducting the inquiry, the present FIR was registered on 19.1.2012.
(3.) Petitioners seek quashing of the FIR on the ground that petitioner No. 1 Mrs. Sudharshan Nayyar is the owner of the property. It was stated that the disputed property was earlier owned by M/s. Himachal Timber Traders, having partners Rattan Chand, Sagar Chand, Dwarka Nath, Gajinder Mohan, Raj Kumar s/o. Kishan Chand Bimal d/o Kishan Chand. As a dispute arose in the year 1965 between M/s. Himachal Timber Traders and State of Himachal Pradesh, the matter was got settled through arbitration and ultimately, after filing of objections, the award was modified and liability of M/s. Himachal Timber Traders was fixed at Rs. 2,00,073/ - with interest @ 6 1/4% vide order dated 27.10.1987. M/s. Himachal Timber Traders obtained the permission from the Himahcal Pradesh High Court on 17.1.1991 for sale of the present property in dispute to settle the liabilities of the said firm towards Himachal State and accordingly, vide sale deed dated 15.2.1992, M/s. Himachal Timber Traders sold the property to M/s. S.N. Enterprises to clear the liability. It is further stated that vide dissolution deed dated 15.3.1996, K.L. Mahajan partner left partnership firm of M/s. S.N. Enterprises and the petitioner became sole proprietor of M/s. S.N. Enterprises and therefore, she was owner of the disputed property on the basis of sale deed dated 15.2.1992. It was further stated that disputed property was not agreed to be sold to the complainant Bakhtawar Singh but was agreed to be sold to Gursharan Singh and Akinderjit Dhillon to the extent of 1/3rd and 2/3rd share respectively. Only on the filing of FIR, the petitioners came to know that the said vendees had further agreed to sell the land to the present complainant Bakhtawar Singh on 25.8.2009. The said agreement has not seen the light of the day till date. Bakhtawar Singh is neither signatory to the agreement nor there is any privity of contract between the petitioners and Bakhtawar Singh. The petitioners further stated that petitioner No. 2 being the general power of attorney on behalf of petitioner No. 1, appeared before Sub Registrar on 5.5.2010, the date fixed for the execution of the sale deed but the vendee did not turn up. Petitioner No. 1 has never refused to execute the sale deed. As the terms of the agreement were violated, the petitioner No. 1 filed a civil suit for declaration for declaring agreement dated 11.4.2008 null and void. The said civil suit is still pending. It is alleged that the co -owners Sagar Chand and Dwarka Nath had also filed a civil suit for declaration and permanent injunction regarding the disputed property, challenging the mutation in favour of M/s. S.N. Enterprises. The suit was filed on 23.2.2008. In the said suit, no interim injunction was granted and the said suit was dismissed in default on 26.2.2010. An application for restoration was also dismissed in default on 1.8.2010. It was further stated that an application for cancellation of the mutation entry was filed. SDM -cum -Collector remanded the case back to Tehsildar -cum -A.C. Grade II on 6.5.2001. On 18.10.2010, the Divisional Commissioner passed an order of status quo regarding the change of mutation entry. It is stated that the learned Judicial Magistrate had already framed the charges on 5.6.2012. It is further stated that it was basically a civil dispute and FIR has been filed to harass the petitioners. The complainant was not party to the agreement and averments in the complaint in this regard are false. In fact, the vendees had failed to get the sale deed executed on 5.5.2010.;