Punjab-Haryana High Court
Baljinder Kaur vs State Of Punjab on 17 September, 2024
Neutral Citation No:=2024:PHHC:123604
CRM-M-38373-2024 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
279 CRM-M-38373-2024
Date of decision: 17th September, 2024
Baljinder Kaur
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Mr. J.S. Dadwal, Advocate for the petitioner.
Mr. A.S. Samra, AAG, Punjab.
Mr. Karambir Singh, Advocate for the complainant.
***
MANISHA BATRA, J (ORAL):-
The present petition has been filed by the petitioner under
Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS')
seeking grant of anticipatory bail in case bearing FIR No. 160 dated
17.06.2024 registered under Sections 420, 120-B of IPC, 1860 at Police
Station Sahnewal, District Ludhiana.
2. Brief facts of the case relevant for the purpose of disposal of
this petition are that the aforementioned FIR was registered on the basis of a
complaint lodged by the complainant Ranjot Singh Samra through his
special power of attorney holder Sham Sunder Monga, alleging therein that
the present petitioner who was owner in possession of a constructed shop
measuring 75 sq. yards had entered into an agreement to sell the said shop to
1 of 8
Neutral Citation No:=2024:PHHC:123604
the complainant for a sale consideration price of Rs. 70,00,0000/-. A written
agreement was executed on 02.12.2022. An amount of Rs. 17,00,000/- was
given to the petitioner as earnest money at the time of execution of the
agreement. The sale deed was agreed to be executed as on 05.06.2023. The
complainant paid a sum of Rs. 11,00,000/- to the petitioner on 03.03.2023
and 24.03.2023 respectively. After receiving amount of Rs. 28,00,000/-, the
petitioner extended the date for execution of sale deed by three weeks on the
ground that No Objection Certificate (for short 'NOC') was to be received. It
was also agreed that if she did not receive the NOC within three months,
then she would be liable to repay the entire amount along with interest. The
complainant alleged that he remained ready and willing to perform his part
of the agreement along with balance sale consideration and stamp charges
etc. but initially the petitioner postponed the matter due to non-availability
of NOC and non completion of some documents of title, but then instead of
performing her part of the agreement, she transferred the property which was
the subject matter of the agreement between them to her relatives by getting
a sale deed registered on 08.11.2023. The complainant by alleging that he
had been cheated by the petitioner, prayed for taking action against her. After
registration of FIR, investigation proceedings have been initiated and are
underway. Apprehending her arrest, the petitioner had moved an application
for grant of pre-arrest bail before the learned Additional Sessions Judge,
Ludhiana which was dismissed vide order dated 26.07.2024.
3. It is argued by learned counsel for the petitioner that she has
been falsely implicated in this case. She had entered into an agreement to
2 of 8
Neutral Citation No:=2024:PHHC:123604
sell a shop to the complainant. It was the complainant who failed to abide by
the terms and conditions of the written agreement as even after NOC had
been obtained by the petitioner from the concerned authority, he did not turn
up for getting the sale deed executed in his favour by making payment of
balance sale consideration amount and thereby compelled the petitioner to
execute sale deed in favour of some other persons. She had even filed a suit
against the complainant seeking declaration to the effect that the agreement
to sell as executed between them on 02.12.2022 was cancelled on account of
default committed by the complainant, though the said suit had been
subsequently withdrawn by her. She never intended to cheat the
complainant. The ingredients for commission of offence of cheating had not
been made out against her. Infact, the dispute between the parties was purely
of civil nature and the complainant tried to give it a color of criminality. She
is ready to join the investigation. Her custodial interrogation is not required.
No recovery is to be effected from her due to committing default in
compliance of terms and conditions of the agreement and the earnest money
as given by complainant to her stands forfeited. With these broad
submissions, it is urged that the petition deserves to be allowed. To fortify
his arguments, learned counsel for the petitioner has placed reliance upon
authorities 'CRM-M-35421-2022 titled as 'Raj Kumari vs. State of
Haryana' decided on 05.09.2022, 'Satbir Singh vs. State of Punjab, 2024
NCPHHC 8002' and judgment of Hon'ble Supreme Court 'Arnesh Kumar
vs. State of Bihar and another, 2014(3) RCR (Criminal) 527'.
4. On the other hand, learned counsel for the respondent No.2-
3 of 8
Neutral Citation No:=2024:PHHC:123604
complainant has placed on record copy of receipt dated 24.03.2023 shown to
be executed by the petitioner qua receipt of an amount of Rs. 28,00,000/- as
earnest money amount. Its vernacular has also been annexed with the report
which shows that it was also endorsed by the petitioner that as she had failed
to provide NOC, therefore, the date of executing sale deed was extended till
the receipt of NOC plus three weeks and if the NOC was not provided
within three months, then she would be liable to refund the amount with
interest to the petitioner. Annexure R-2/2 is copy of legal notice sent by
learned counsel for the complainant to learned counsel for the petitioner.
5. Learned State counsel assisted by learned counsel for the
complainant has submitted that the petitioner with an intention to cheat the
complainant since the very beginning had entered into an agreement to sell
her shop measuring 75 sq. yards to him and received an amount of Rs.
28,00,000/- as earnest money. She never provided any NOC issued by the
competent authority to the complainant. The NOC was got issued by her was
with regard to the residential property and not qua the shop in question. All
this showed that since the very beginning the petitioner had malafide
intentions. The allegations against the petitioner are serious in nature as she
has caused wrongful loss to the tune of Rs. 28,00,000/- to the complainant.
Her custodial interrogation is required for proper investigation of the matter
by the police as well as for effecting recovery of the earnest money amount.
Therefore, it is urged that the petition does not deserve to be allowed.
6. I have heard learned counsel for the parties and have gone
through the record carefully.
4 of 8
Neutral Citation No:=2024:PHHC:123604
7. It is not in dispute between the petitioner and the complainant
that the petitioner had executed an agreement to sell a shop measuring 75 sq.
yards for a sum of Rs. 70,00,000/- in favour of the complainant by executing
a written agreement and had received an amount of Rs. 28,00,000/- from the
complainant. As alleged by the complainant, despite agreeing to execute sale
deed in his favour after obtaining NOC from the concerned government
authority in respect of the shop in question, the petitioner did not obtain any
such NOC and the said NOC was procured with regard to the some
residential property belonging to the petitioner. It has been asserted that the
petitioner had induced the complainant to part with the amount of Rs.
28,00,000/- by making a false representation and with an intention to cause
wrongful loss to him as no NOC was obtained specifically with regard to
shop in question which showed the intention of the petitioner to cheat the
complainant not only this she had sold the disputed shop to some of her
relatives which showed her dishonest intention. The custodial interrogation
of the petitioner is sought for the purpose of recovery of amount of Rs.
28,00,000/-.
8. Though the case as set up by the petitioner is that an NOC with
regard to the shop in question had been obtained and it was the complainant
who failed to get sale deed executed by making payment of balance sale
consideration amount within the stipulated period, however, learned counsel
for the petitioner has placed on record a photocopy of NOC which is shown
to be issued in favour of the petitioner with regard to the some residential
property and not shop. As such, it is a debatable question as to whether the
5 of 8
Neutral Citation No:=2024:PHHC:123604
petitioner was actually ready to perform her part of the agreement or not?
For the purpose of the present petition whereby the prayer has been made by
the petitioner for extending him benefit of pre-arrest bail, it may be stated
that the well settled proposition of law is that while dealing with the
anticipatory bail petitions, the courts have to consider the gravity of the
offence and need for a fair and proper investigation. The instant case is
based on documentary evidence. The subject offences are triable by
Magistrate. It is well settled proposition that the jurisdiction of criminal
Court cannot be invoked for realisation of dues of the complainant without
trial and also that the criminal courts while exercising jurisdiction to grant
anticipatory bail, are not expected to act as a recovery agents to realise the
dues of the complainant, that too without any trial. Reference in this regard
can be made to Dilip Singh Vs. State of Madhya Pradesh and another,
2021 (1) RCR (Criminal) 585 and the order dated 19.03.2021 passed by
Hon'ble Supreme Court in Special Leave to appeal (criminal) No. 1274 of
2021 title as 'Manoj Kumar Sood and another Vs. State of Jharkhand,
special leave to appeal (crl.) No. 1274 of 2021, decided on 19.03.2021',
wherein it was observed so. Reference can also be made to order dated
16.01.2023 passed in 'Bimla Tiwari Vs. State of Bihar and others, Special
Leave Petition (Criminal) Nos. 834-835 of 2023' wherein Supreme Court
observed that the criminal law process, especially while deciding the
application for bail should not be used for recovery of money and rather
should be just upon merits of the case. In Satbir Singh's case (supra) which
has been relied upon by learned counsel for the petitioner also, the accused
6 of 8
Neutral Citation No:=2024:PHHC:123604
had been booked for commission of offences under Sections 406, 420 and
120-B of IPC. It was argued that his custodial interrogation is required to
find and trace out as to where, the swindled money had disappeared
especially since the money had not even been returned to the complainant. It
was observed that the custodial interrogation of the petitioner could not be
ordered for that purpose. Keeping in view the directions issued by Hon'ble
Supreme Court in Satinder Kumar Antil Vs. Central Bureau of
Investigation passed in Special Leave to Appeal No. 1591 of 2021, it was
observed that custodial interrogation of the petitioner was not required and
he was granted benefit of pre-arrest bail. In Raj Kumari's case (supra), the
petitioner prayed for grant of anticipatory bail in a case registered under
Sections 406 and 420 of IPC against her. It was observed that the arrest of
accused was not required under the provisions of sub-section (1) of Section
41 of Cr.P.C. In view of the guidelines issued by Hon'ble Supreme Court in
Arnesh Kumar' s case (supra), the prayer made by the petitioner was
allowed by observing that the allegations against the petitioner were based
on documentary evidence and it was appropriate to direct them to appear
before the investigating officer to join investigation.
9. The instant one is also a case which is primarily based upon
documentary evidence. The custodial interrogation of the petitioner is not
required for that purpose. Then so far as the recovery of amount of Rs.
28,00,000/- which was given by the complainant as earnest money to her, in
view of the position of law as discussed above, the Court while deciding
petition for pre-arrest bail cannot act as a recovery agent and further keeping
7 of 8
Neutral Citation No:=2024:PHHC:123604
in view the fact that the subject offence is triable by Magistrate, punishable
with a maximum sentence of seven years, I am of the considered opinion
that the petition deserves to be allowed. Hence, the same is allowed and the
petitioner is ordered to be admitted to pre-arrest bail subject to her
surrendering before the Investigating Officer/ Arresting Officer within a
period of one week and furnish personal as well as surety bonds and further
subject to her joining investigation as and when required thereafter and also
on compliance of the conditions as enumerated in Section 482(2) of
Bharatiya Nagarik Suraksha Sanhita (for short 'BNSS').
10. It is, however, clarified that the observations made hereinabove
shall not be construed as an expression of opinion on the merits of the case.
11. Since the main petition has been allowed, pending application,
if any, is rendered infructuous.
[MANISHA BATRA]
JUDGE
17th September, 2024
Parveen Sharma
1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
8 of 8
