Allowed

Amrik Singh and Ors. v. State through SHO P/S Kathua and Anr.

J&K HC6 Nov 2020CRMC/246/2018

Case brief

AI extract

What is this about?

The High Court quashed FIR No. 80/2018 for offences under Sections 467, 471, and 34 RPC. The Court held that the dispute was essentially civil concerning land shares and there were no ingredients of cheating or forgery against the respondent.

What did the court decide?

FIR No. 80/2018 for offences under Sections 467/471/34 RPC and proceedings emanating therefrom are quashed.

Amrik Singh and Ors. Vs State through SHO P/S Kathua and Anr. — Cheque Dishonour | J&K HC (2020)

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HIGH COURT OF JAMMU AND KASHMIR

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AT JAMMU

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CRMC 246/2018 CrlM 1127/2019 IA 1/2018

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Reserved on 02.11.2020 Pronounced on 06.11.2020

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Amrik Singh and others ...Petitioners

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Through:- Mr. L.K.Sharma Sr. Advocate with Mr. Mayank Gupta Advocate v/s

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State and another ... Respondent(s)

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Through:- Mr. Ravinder Gupta AAG for R-1 Mr. Rahul Pant Adv for R-2.

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Coram : HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT

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1 Through the medium of instant petition, filed under Section 561-A of J&K Code of Criminal Procedure (corresponding to Section 482 of the Central Code of Criminal Procedure), the petitioners have challenged FIR No. 80/2018 for the offences under Sections 467/471/34 & 420 RPC registered with Police Station, Kathua.

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2 The facts, giving rise to the filing of instant petition, are that petitioners No. 1 and 2 entered into an agreement to purchase land measuring 2 kanals comprised under Khasra No. 519 situated at Ward No. 9 Taraf Manjli Tehsil and District Kathua with petitioner No.2 in terms of Agreement to Sell dated 14.01.2012. According to the petitioners, an amount of Rs.10.00 lac was paid as part payment to petitioner No.3 and they were put in possession of the land in question. It is contended that petitioner No.3 was in exclusive possession of the land in question and the other co-sharers had conveyed their no objection to the execution of the Agreement to Sell by

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petitioner No.3 in favour of other petitioners. It is also contended that respondent No.2 has nothing to do with the land in question and that he has never been in possession of the same. It is averred that, on an earlier occasion, respondent No.2 had lodged FIR for offence under Section 447 RPC against petitioner No.1, but after investigation, the said case was closed. It is the further case of the petitioners that respondent No.2, in order to harass and pressurize the petitioners, after closure of earlier FIR, moved an application under Section 156(3) of Cr.P.C before the learned Chief Judicial Magistrate, Kathua and on the directions of the said Court, impugned FIR came to be registered against the petitioners.

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3 The petitioners have challenged the impugned FIR on several grounds. The main grounds urged by the petitioners are that the contents of the FIR do not disclose commission of any offence against the petitioners, even if same are taken at their face value. It is further urged that the dispute between the petitioners and respondent No.2, if any, is essentially a civil dispute and criminal prosecution is not maintainable in a case of such nature.

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4 The petitioners have also called into question the order of learned Magistrate whereby the directions were issued to the concerned Police Station to register FIR against the petitioners, as, according to the petitioners, the said order has been passed without application of mind. It is contended that the impugned FIR has been lodged only to pressurize and blackmail the petitioners so as to coerce them to give away their right over the land in question.

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5 Respondent No.1 has filed the status report, according to which, on 02.03.2018 a complaint was filed by respondent No.2 that was marked by the learned CJM to the Police Station, Kathua and on the basis of contents of the said complaint, the subject FIR came to be registered. It is further stated

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in the status report that statement of the complainant was recorded under Section 164-A Cr.PC, whereas the statements of the witnesses were recorded under Section 161-A Cr.P.C. The investigation is stated to be still in progress as the demarcation report from the Revenue Department is still awaited. According to respondent No.1, prima facie , offences have been established against the petitioners.

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6 Respondent No.2, the complainant, did not file any reply to the petition, but he has filed an application for vacation of the interim order dated 08.05.2018 passed by this Court whereby the investigation of the subject FIR was stayed. In his application, respondent No.2 has submitted that he, his sister and petitioner No.3 are co-sharers of the land in question. Apart from this, the legal heirs of late Chaman Lal are also stated to be the co-sharers of the land in question. It is contended that the petitioners, with a view to defraud and deprive the respondent No.2 and other co-sharers have entered into an Agreement to Sell dated 14.01.2012 in respect of land measuring 2 kanals despite the fact that the share of petitioner No.2 was only 6 ½ marlas of land. Thus, according to respondent No.2, petitioner No.3 was not competent to enter into such kind of an agreement. It is contended that respondent No.2 never knew about the aforesaid Agreement to Sell and in the year 2018 when the petitioners 1 and 2 tried to trespass the land in question, he was constrained to lodge FIR with Police Station Kathua and during the course of investigation, the said Agreement to Sell was produced by petitioner Nos. 1 and 2. It is averred that the claim of the petitioners that no objection was given by the co-sharers to the execution of the Agreement to Sell is absolutely incorrect and it appears that the consent of co-sharers has been forged. It is further averred that a civil suit for permanent prohibitory injunction has been filed by respondent No.2 against the

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petitioners in respect of the land in question. According to respondent No.2, in that suit, petitioner No.3 did not state anything about the execution of the Agreement to Sell.

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7 Respondent No.2 has placed on record copies of revenue record relating to the land in question and he has submitted that under the garb of civil dispute, the petitioners are committing criminal offences. On this ground, it is urged that the present petition deserves to be dismissed.

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8 I have heard learned counsel for the parties and perused the record of the case.

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9 A perusal of the impugned FIR would show that petitioner No.3 claiming himself to be the owner of the land in question, had executed an Agreement to Sell dated 14.01.2012 in respect of the land in question in favour of petitioners No. 1 and 2 and accepted part payment of Rs.10.00 lac from them. The FIR further contains an allegation that the share of petitioner No.3 in the land in question comes to 6 ½ marlas only, whereas he has agreed to sell more than his share of the land which, according to respondent No.2, has caused wrongful loss to him and the other co-sharers. The FIR further contains an allegation that petitioner No.3 has created a false document i.e. agreement to sell with an intention to defraud.

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10 The fact that petitioner No.3 and respondent No.2 are co-sharers is not in dispute. The dispute between them is limited only to the extent of their respective shares. According to respondent No.2, petitioner No.3 is entitled to only 6 ½ marlas of land and despite this, he has agreed to sell much more than that to the other petitioners.

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11 The question whether petitioner No.3 has, while executing the Agreement to Sell in favour of petitioner Nos. 1 and 2, sought to sell the land which is beyond his share, can be determined only in a civil proceeding

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and even if it is found that petitioner No.3 has sold land beyond his share, the final rights of the co-sharers have to be adjusted at the time of partition of the joint holding. In fact, the parties are litigating in the civil Court as has been admitted by respondent No.2 in his application for vacation of the interim stay.

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12 It has been vehemently contended by respondent No.2 that petitioner No.3 has, while executing the Agreement to Sell, claimed title over whole of the land in question, which he is palpably false, and thus, respondent No.2/complainant has been cheated. In order to test the merits of this contention of respondent No.2, we need to understand the definition of the offence of cheating. The said offence has been defined in Section 415 of the Indian Penal Code to mean:

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"Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'."

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13 From the aforequoted provisions, it is clear that in order to constitute

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the offence of cheating, there has to be a fraudulent inducement from the accused to any person, who must, as a consequence of such inducement, deliver any property or do or omit to do anything so as to cause damage or harm to such person.

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14 The Supreme Court has, in V.Y. Jose v. State of Gujarat and Anr., [(2009) 3 SCC 78], while defining the offence of cheating, observed as under:

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"An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

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

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(ii) fraudulently or dishonestly inducing any person to deliver any property; or

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(iii) To consent that any 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.

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For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out."

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15 From the afore-quoted observations of the Supreme Court, it is

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evident that misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating.

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16 Similarly in Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. [(2000) 4 SCC 168], the Supreme Court observed as under:

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"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

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15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal

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prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

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17 From the aforesaid enunciation of law on the subject, it is clear that

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„cheating‟ is made out if there was fraudulent or dishonest intention at the very inception of a transaction i.e. at the time when promise or representation was made. Thus, for establishing an offence of cheating, the complainant is required to show that the accused had fraudulent intention at the time of making promise or representation.

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18 In the instant case, neither petitioner No.3, nor any other petitioner has ever made any promise/representation/inducement to respondent No.3. It is difficult to accept the contention of respondent No.2 because petitioner No.3 has not made any representation to respondent No.2. So in this case, there is no question of any fraudulent intention on the part of petitioner No.3 qua the complainant/respondent No.2. In fact, no transaction and/or contract has been entered into by and between the petitioners and respondent No.2/complainant. Thus, the very first ingredient of offence under Section 420 RPC is not fulfilled from the allegations made in the impugned FIR.

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19 It has next been contended by learned counsel for respondent No.2 that the petitioners have created a false document to defraud respondent No.2 and the other co-sharers. According to the learned counsel, making of a false document so as to support any claim over the title would constitute forgery within the meaning of Section 463 of RPC, as the document i.e. Agreement to Sell was created for the purpose of showing that petitioner

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No.3 was owner of land in the joint property, although he was not entitled to therefor. Thus, according to learned counsel for respondent No.3, petitioner No.2 must be held to have committed the offence of forgery.

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20 In order to test the merits of the above contention, it is necessary to understand the definition of “forgery”. Section 463 of RPC defines forgery. It reads as under:

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Section 463 of the Indian Penal Code reads as under:

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"Forgery-whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

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21 From the afore-quoted definition of forgery, it is clear that making of any false document is a sine qua non therefor. Making of a false document is

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specified in Section 464 of RPC which reads as under:

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Section 464- Making a false document. [A person is said to make a false document or false electronic record-

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First- who dishonestly or fraudulently-

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(a) makes, signs, seals or executes a document or part of a document;

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(b) makes or transmits any electronic record or part of any electronic record;

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(c) affixes any digital signature on any electronic record;

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(d) makes any mark denoting the execution of a document or the authenticity of the digital signature;

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with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

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Secondly-who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

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Thirdly-who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration”

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22 From the provisions quoted above, it is clear that, to make a false document, there has to be intention causing it to be believed that such document, inter alia, was made by the authority of a person by whom or by whose authority, he knows that it was not made.

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23 Petitioner No.3 is admittedly the co-owner of the land in question. He has executed the Agreement to Sell. The execution of the said document is not denied. A perusal of the Agreement to Sell reveals that petitioner No.3 has executed it in his own capacity. He is not claiming in the said Agreement to Sell that he is doing it on behalf of or under the authority of any other person. Even if it is assumed that representation of petitioner No.3 in the Agreement to Sell to the effect that he is owner in possession of the land in question, is false, it would be the vendee i.e petitioner Nos.1 and 2 and not the co-sharers, who would be aggrieved of such representation. Petitioner No.3, therefore, cannot be stated to have created any false document.

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24 Thus, the basic ingredients of offence under Section 467 are altogether missing in this case. Therefore, by no stretch of imagination, it can be stated that the petitioners are liable to be prosecuted for the offence under Section 467 RPC. Since the allegations contained in the FIR do not

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make out a case of preparation of a forged document, as such, the offence under Section 471 RPC is also not made out because it talks of making use of a forged document.

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25 The question arises as to what should be the course of action in a case where the contents of FIR, even if taken at their face value, do not disclose commission of criminal offence against the accused. Can criminal proceedings be allowed to continue in a case of such nature, and if so, would it not amount to abuse of process of the Court . For securing answer to these questions, it is necessary to notice the law holding the field.

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26 In Indian Oil Corporation v. NEPC India Ltd. and Ors. (2006) 6 SCC 736, the Supreme Court cautioned about the growing tendency in business circles to convert purely civil disputes into criminal cases. In the said case, the Supreme observed as under:

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“Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged”.

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27 In Inder Mohan Goswami and another vs. State of Uttranchal and

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ors, (2007) 12 Supreme Court Cases 1 , the Supreme Court, while quashing of proceedings emanating from the FIR observed that the Court must ensure that the criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. While holding so, the Supreme Court observed as under:

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45 Even if all the averments made in the FIR are taken to be correct, the case for prosecution under sections 420 and 467 IPC is not made out against the appellants. To prevent abuse of the process and to secure the ends of justice, it becomes imperative to quash the FIR and any further proceedings emanating therefrom.

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46 The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private

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vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.

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28. In G. Sagar Suri And Anr vs State of UP and ors, (2000) 2 SCC 636, the Supreme Court observed that it is the duty and obligation of the criminal Court to exercise a great deal of caution in issuing the process of law when the matters are essentially of a civil nature.

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29 The basic judgment governing the principles for exercise of powers under Section 482 of Code of Criminal Procedure is „ State Of Haryana and ors vs Ch. Bhajan Lal and ors, 1992 AIR 604, 1’. In the said case, the Supreme Court has clearly held that, where the allegations made in the First Information Report or the complaint, 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, the Court would be justified in quashing the proceedings in exercise of powers vested under Section 482 of Cr.P.C.

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30 From the aforesaid discussion of the law on the subject, it is clear that once the High Court comes to the conclusion that the allegations made in the FIR do not disclose commission of any criminal offence by the accused, the Court should not hesitate in exercising its powers under Section 482 Cr.P.C in quashing such an FIR including the proceedings emanating therefrom.

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31 Adverting to the facts of the instant case as already discussed hereinbefore, the allegations made in the FIR, which is subject matter of the

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instant petition, do not constitute any offence against the petitioners. The material on record clearly suggests that the dispute between the petitioners and respondent No.2 is essentially of a civil nature, inasmuch as one party is claiming to be the owner of the land sold by him, whereas the other party is claiming that the seller has executed the Agreement to Sell in respect of the land which is beyond his share. Such a dispute can be settled in civil proceedings and not by launching criminal prosecution. Allowing the criminal proceedings to go on in a case of such nature would encourage the people to settle the matters of civil nature by having resort to criminal proceedings which is impressible in law.

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32 For the foregoing reasons, I find this a fit case where the Court should exercise its jurisdiction under Section 561-A Cr.P.C (corresponding to Section 4 82 of the Central Code of Criminal Procedure) to prevent the abuse of process of law. Accordingly, the petition is allowed and FIR No. 80/2018 for the offences under Sections 467/471/34 RPC registered with Police Station, Kathua and the proceedings emanating therefrom, is quashed.

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(SANJAY DHAR) JUDGE

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Jammu 06.11.2020 Sanjeev

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Whether the order is speaking: Yes Whether the order is reportable: Yes

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SANJEEV KUMAR UPPAL 2020.11.09 10:30 I attest to the accuracy and integrity of this document

Amrik Singh and Ors. v. State through SHO P/S Kathua and Anr.

Case brief

What is this about?

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Amrik Singh and Ors. v. State through SHO P/S Kathua and Anr.

Case brief

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