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2008 DAILYLAW 1321 (DEL)

Kusum Sandhu v. Ved Prakash Narang

2008-07-31

Aruna Suresh

body2008
Judgement Smt. Govind Kaur was the owner of building known as Rai Bahadur Basakha Building situated at Plot Nos. 5 and 8 comprised of Khasra No. 200/31 and 588/ 500 Block F, Khasoor Road of Joshi Road, Karol Bagh, New Delhi. Smt. Govind Kaur executed a registered Will on 14.2.1984 in favour of petitioner No. 1 Smt. Kusum Sandhu, her daughter in law and petitioner No 1's children. Smt. Govind Kaur allegedly executed an agreement to sell dated 4.8.1986 in favour of respondent/complainant thereby agreeing to sell her 1 /5th undivided share in the said property through her attorney Pritam Singh for consideration. 2. Smt. Govind Kaur died on 29.9.1986 and on her death petitioner No. 1 along with her children became absolute owner of the said property by virtue of the said Will. Petitioner No. 2 happens to be the husband of petitioner No. 1. After the death of Smt. Govind Kaur, petitioner No. 1 filed a suit on 26.7.1988 against the respondent and one Smt. Suman Mahajan seeking possession of the impugned property and also permanent injunction, mandatory injunction and damages. The said suit was contested by the respondent/ complainant and he claimed himself to be the owner of 1/5th undivided share in the said property in view of the agreement dated 4.8.1986. The civil suit was decided by the learned Additional District Judge by his judgment and decree dated 9.7.1998 in favour of petitioner No. 1. 3. Against the said judgment and decree, respondent filed an appeal before the Division Bench of this Court being RFA No. 450/ 1998. The said appeal was dismissed by the Division Bench vide its order dated 30.4.1999. Thereafter, respondent filed a complaint being complaint No. 88/1/2002 on the basis of agreement to sell dated 4.8.1986. An order under Section 156(3) of the Criminal Procedure Code (hereinafter referred to as Code) was passed by the learned Magistrate directing SHO, Police Station Desh Bandhu Gupta Road to enquire into the complaint of the complainant and file a report. The SHO filed his report on 20.10.2002 after conducting preliminary inquiry observing that the dispute was purely civil in nature. The learned MM thereafter proceeded to record pre summoning evidence of the witnesses and on 17.1.2007 he passed an order for issue of summons to the petitioners for offences under Sections 415/193/191/209/34 Indian Penal Code (hereinafter referred to as IPC). The SHO filed his report on 20.10.2002 after conducting preliminary inquiry observing that the dispute was purely civil in nature. The learned MM thereafter proceeded to record pre summoning evidence of the witnesses and on 17.1.2007 he passed an order for issue of summons to the petitioners for offences under Sections 415/193/191/209/34 Indian Penal Code (hereinafter referred to as IPC). Aggrieved by the said summoning order, the present petition has been filed. 4. Mr. Sidharth Luthra, learned senior counsel for the petitioners has submitted that the alleged agreement to sell was executed by deceased Smt. Govind Kaur on 4.8.1986 and the respondent after losing his case in the civil court and also his appeal against the said judgment and decree of the civil court, has filed the present complaint after about three years of the final decision of the civil court on the issues raised by the respondent in his written statement in the civil court. He further submitted that the trial court as well as the appellate court categorically held that the defendant/respondent herein had not placed any material on record to show that the respondent had paid an amount of Rs. 2 lacs at the time of the execution of the said agreement and the appellate court further held that there was no evidence to suggest that there was any payment of Rs. 2 lacs made by the complainant to Smt. Gobind Kaur as a consideration for the said agreement. He emphasised that the appellate court further held that the respondent had not been able to prove the existence and validity of the said agreement. He has therefore argued that the order of the Metropolitan Magistrate dated 17.1.2007 thereby issuing process to the petitioners for appearance has been passed in a mechanical manner and against the procedure established by law. Accordingly he prayed that the complaint as well as the proceedings conducted therein by the Metropolitan Magistrate are liable to be quashed. Learned counsel for the petitioners has relied upon: 1. Ram Chander v. R. K. Khattar and Anr. -137 (2007) DLT 639. 2. M/s. Karam Chand Ganga Prasad and Another v. Union of India and Others - 1970(3) SCC 694 : 1971 Cri LJ 1072. 3. K.G. Premshanker v. Inspector of Police and Another - (2002) 8 SCC 87 : 2002 Cri LJ 4343. 4. Ram Chander v. R. K. Khattar and Anr. -137 (2007) DLT 639. 2. M/s. Karam Chand Ganga Prasad and Another v. Union of India and Others - 1970(3) SCC 694 : 1971 Cri LJ 1072. 3. K.G. Premshanker v. Inspector of Police and Another - (2002) 8 SCC 87 : 2002 Cri LJ 4343. 4. Indian Railway Class II Officers Federation and Another v. Anil Kumar Sanghi and Others - (2002) 8 SCC 98 : AIR 2002 SC 3314 . 5. All Cargo Movers (I) Pvt. Ltd. and Ors. v. Dhanesh Badarmal Jain and Anr. - Cri. Appeal No. 1443/2007, decided on 12.10.2007 (Reported in AIR 2008 SC 247 ). 5. Mr. Gulshan Rai Nagpal, learned counsel for the respondent, has submitted that the petitioner had obtained the judgment and decree in her favour by misrepresentation, concealment of facts and playing fraud upon the trial court as well as on the Appellate Court as late Sh. Jasbir Singh, the sole witness to the agreement who was the accountant of petitioner's mother-in-law and her family had since been manoeuvred and was not allowed to appear in the witness box by the petitioners. However, the said witness was examined by the learned Metropolitan Magistrate in pre-summoning evidence by visiting his residence who has proved the case of the respondent that the agreement to sell dated 4.8.1986 was executed by the attorney of deceased Gobind Kaur. It is further argued that Pritam Singh, attorney of the deceased, had also informed the Municipal Corporation of Delhi to mutate the name of the respondent/complainant as owner of the impugned property i.e. 831, Dr. Joshi Road, Karol Bagh in the records of the corporation. Petitioner No. 1 got the decree in her favour because of lack of evidence on record. He urged that result of the civil suit has not affected the rights of the complainant in respect of other properties and therefore, he was compelled to file a complaint in the Court of learned Metropolitan Magistrate. It is further submitted that a sum of Rs. 2 lacs was paid at the time of execution of the agreement to sell against receipt which has also not been taken care of and considered by the civil court while decreeing the suit of petitioner No. 1. It is further submitted that a sum of Rs. 2 lacs was paid at the time of execution of the agreement to sell against receipt which has also not been taken care of and considered by the civil court while decreeing the suit of petitioner No. 1. It is urged that the order of the learned Metropolitan Magistrate dated 17.1.2007 whereby he took cognizance of the offences under Sections 415/193/191/209/34 IPC as against accused Nos. 1 and 2 and issued summons for appearance on the said two accused person is correct and is based on the evidence produced by the complainant prior to the summoning of accused persons in the said complaint. 6. The admitted facts are that Smt. Gobind Kaur was the owner of property known as Rai Bahadur Basakha Building situated at Plot Nos. 5 and 8 comprised of Khasra No. 200/31 and 588/500 Block F, Khasoor Road of Joshi Road, Karol Bagh. A civil suit was filed by the petitioner No. 1 after the death of Smt. Gobind Kaur on 26.7.1988, claiming herself and her children to be the owners of the said property by virtue of a Will executed by deceased Smt. Kaur on 14.2.1984. The said civil suit was filed against the respondent and Smt. Suman Mahajan who had allegedly trespassed into the property in absence of the petitioner when she had gone abroad. Besides the relief of possession, petitioner No. 1 also claimed relief of injunction against the respondent and Smt. Suman Mahajan that they should be restrained from creating any third party interest in the said property. She also claimed damages with the directions to the complainant to handover the possession of the property to her. 7. This civil suit No. 862/1990 dated 26.7.1988 was contested by the respondent and one of the defences raised by the respondent in the said written statement was that he was owner of 1 /5th undivided share in the said property as it was sold to him by Smt. Gobind Kaur through her attorney Sh. Pritam Singh for a consideration of Rs. 2 lacs and an agreement to sell dated 4.8.1986 was executed between him and Smt. Gobind Kaur through her attorney Sh. Pritam Singh. 8. On the pleadings of the parties, the trial court framed as many as seven issues. For the purposes of the present petition, findings of the court on issue Nos. Pritam Singh for a consideration of Rs. 2 lacs and an agreement to sell dated 4.8.1986 was executed between him and Smt. Gobind Kaur through her attorney Sh. Pritam Singh. 8. On the pleadings of the parties, the trial court framed as many as seven issues. For the purposes of the present petition, findings of the court on issue Nos. 1, 2, 5 and 7 are relevant. These issues read as follows: "1. Whether late Govind Kaur executed the registered will in favour of the plaintiff as alleged? OPP 2. Whether the suit is not maintainable as alleged in para No. 1 of the preliminary objection of WS ? OPD 5. Whether the defendant committed trespass and are in illegal and unauthorized occupation of the suit premises as alleged in para No. 4 of the plaint? If so, its effect? OPP 7. Whether the plaintiff is entitled to possession of the premises in suit?" 9. While deciding issue No. 1, the learned Additional District Judge was pleased to hold that from the record it was clearly established that Smt. Gobind Kaur had executed a registered Will in favour of the plaintiff/ present petitioner. 10. Issue No. 2 related to the maintainability of the suit and the trial court observed that there was evidence to show that no amount as consideration was paid at the time of executing the agreement as was clear from para 3 of the said agreement and no receipt for the alleged payment of lump sum of Rs. 2 lacs was produced or proved in evidence by the defendant/respondent and also that there was no evidence to show that Pritam Singh and Gobind Kaur were present at the time when the agreement was executed as their signatures do not appear on the receipts for the payment or on the agreement. Therefore, the court observed that the suit filed by the plaintiff/petitioner No. 1 was maintainable. 11. Therefore, the court observed that the suit filed by the plaintiff/petitioner No. 1 was maintainable. 11. After assessing the entire evidence of the parties adduced on record, the court decided issue No. 5 in favour of the petitioner with the following observations: "In view of the above testimony of the parties the defendant failed to have any right, title, interest in the suit premises and in fact the servant Kehar Singh used to live in the suit premises who left the premises during the time when plaintiff with her husband went out of India to Australia and during that time the defendants have committed trespass illegally in the suit premises and defendant No. 1. The property in suit admittedly stands mutated in the name of the plaintiff. The effect of the same is that the deft. No. 1 who is in occupation or her predecessor had no interest or right to remain in the possession and they are liable to be evicted from the suit premises, accordingly, this issue is decided in favour of plaintiff and against the defendant." 12. In view of the observations of the Court on the other issues, issue No. 7 was accordingly decided in favour of the plaintiff with the following observations: "The burden of proof of this issue was on the plaintiff. It is already held that the plaintiff is rightful owner of the suit premises and the defendants are unauthorised occupants, therefore, the defendants are liable to be ejected out from the suit premises forthwith and the plaintiff is entitled for the recovery of possession of the suit premises in his favour. This issue is decided in favour of plaintiff and against the defendant." 13. In the appeal also, the bone of contention between the parties was the existence and validity of the agreement to sell dated 4.8.1986 alleged to have been executed between Gobind Kaur through her attorney Pritam Singh and the complainant/ respondent Ved Prakash Narang. This issue is decided in favour of plaintiff and against the defendant." 13. In the appeal also, the bone of contention between the parties was the existence and validity of the agreement to sell dated 4.8.1986 alleged to have been executed between Gobind Kaur through her attorney Pritam Singh and the complainant/ respondent Ved Prakash Narang. While observing that the findings of the learned Additional District Judge that since Will dated 14.2.1984 revoked all testamentary documents executed by Smt. Gobind Kaur before that date and consequently the power of attorney granted by her in favour of Pritam Singh and subsequent agreement dated 4.8.1986 entered into between Smt. Gobind Kaur through her attorney was erroneous, but proceeded further to observe that the said incorrect finding did not suggest an erroneous approach which either ran through the entire judgment or was of vital significance and import, which vitiated the entire judgment and decree. 14. The Appellate Court did observe that significantly the defendant failed to produce any of the attesting witnesses to the agreement to prove its execution by Smt. Gobind Kaur through her attorney Pritam Singh. In the Appellate Court also the respondent had taken a plea that it was for the plaintiff/ petitioner to prove that the said agreement was not executed by Gobind Kaur and it was for her to produce attesting witnesses as one of them was the accountant of Smt. Gobind Kaur. These contentions were not accepted by the Appellate Court and it was observed :- "the defendant/appellant could not show that any efforts were made to summon Sh. Tek Chand Maddan, the other witness to the agreement who was not an employee of Smt. Gobind Kaur." 15. As regards the other attesting witness Jasbir Singh, it was held by the trial court that even if he was an accountant of the plaintiff/petitioner, it was for the defendant/ respondent to prove the existence and validity of the agreement dated 4.8.1986 by producing the other witness and by ensuring the presence of Jasbir Singh in the witness box, as the entire case of the defendant was based on the said agreement to sell. These observations were made by the appellate court in the following manner: "We are in agreement with the learned counsel for Smt. Kusum Sandhu that it was for Narang to prove the existence and validity of the agreement dated 4th August 1986, which was a document on which the entire case of Narang rested. While it is true that for reasons beyond his control, neither Smt. Gobind Kaur nor Pritam Singh could enter into the witness box, but Narang could have certainly procured the attendance of Tek Chand Maddan if not Jasbir Singh. His failure to do so, must necessarily cast a doubt on the existence and validity of the alleged agreement dated 4th August 1986. The fact that Jasbir Singh did not respond to the summons issued to him can hardly be a ground for drawing an adverse inference against Smt. Kusum Sandhu who is not even a party to the alleged agreement dated 4th August 1986." 16. The appellate court proceeded further with an assumption that the agreement dated 4.8.1986 was valid and existing in order to decide if the payment of Rs. 2 lacs as consideration amount for the sale of 1/5th undivided share was made by the respondent/appellant. After interpreting various clauses of the agreement, the appellate court observed: "A reading of the aforesaid two paragraphs of the alleged agreement would indicate that there is some ambiguity with regard to the payment of the consideration. It is possible to read the last sentence of the recital clause, as suggested by the learned counsel for the Appellants, to mean that the consideration was paid on the day of the execution of the agreement. On the other hand, Clause 1 of the agreement indicates, as suggested by the learned counsel for Smt. Kusum Sandhu that there is a balance amount of Rs. 2,00,000/- which is required to be paid to the Vendor, that is, Smt. Gobind Kuar. In view of this, it is contended by the learned counsel for Smt. Kusum Sandhu that the alleged agreement dated 4th August 1986 does not clearly indicate when (if at all) the consideration of Rs. 2,00,000/-was paid. There is no evidence on record and, indeed, it is not the case of either of the parties that the balance consideration was paid subsequent to the execution of the alleged agreement dated 4th August 1986. 2,00,000/-was paid. There is no evidence on record and, indeed, it is not the case of either of the parties that the balance consideration was paid subsequent to the execution of the alleged agreement dated 4th August 1986. The contention of the learned counsel for the Appellants that the consideration was paid at the time of signing of the alleged agreement does not stand scrutiny. In the normal course of human conduct, if such a payment had been made simultaneously or contemporaneously, the alleged agreement would have specifically recorded the payment and its receipt. But, as pointed out above, the alleged agreement is quite ambiguous in this regard. Narang has stated in his evidence that the sale consideration of Rs. 2,00,000/- was given by him to Jasbir Singh on the date of the execution of the alleged agreement, namely, dated 4th August 1986. However, three receipts signed by Jasbir Singh for a total amount of Rs. 2,00,000/- were produced. These receipts, strangely enough, were not signed on the date of the alleged agreement but are dated 02.04.1986, 04.05.1986 and 09.06.1986. The last sentence of each of these receipts reads as follows : "This is a temporary receipt which will be adjusted in the final agreement and consolidated receipt issued." It is a little odd that there is no reference of these three receipts in the alleged agreement dated 4th August 1986 nor has any "consolidated receipt" been produced. Moreover, we find it a little unlikely that a purchaser of immoveable property would, in the normal course, give such a huge amount of money to an employee of the seller, especially when the seller and her son and attorney are on hand to receive the sale consideration in the normal course one would have expected either Smt. Gobind Kaur herself to receive this money or her son and attorney Pritam Singh. In view of this, we find substance in the submission of the learned counsel for Smt. Kusum Sandhu that the evidence, or rather the lack of it, leaves no room for doubt that there was no payment of Rs. 2,00,000/- by Narang to Smt. Gobind Kaur as a consideration for the alleged agreement dated 4th August 1986." 17. In view of this, we find substance in the submission of the learned counsel for Smt. Kusum Sandhu that the evidence, or rather the lack of it, leaves no room for doubt that there was no payment of Rs. 2,00,000/- by Narang to Smt. Gobind Kaur as a consideration for the alleged agreement dated 4th August 1986." 17. Thus, the appellate court was of the opinion that the appellant/respondent had not be able to prove the existence and validity of the agreement to sell dated 4.8.1986 and therefore, it affirmed the findings of the learned Additional District Judge with regard to the above said issues Nos. 1, 2, 5 and 7 and dismissed the appeal vide its order dated 30.4.1999. 18. The complainant/respondent faced civil litigation with the petitioners/accused Nos. 1 and 2 since the year 1988 till the year 1999, for a period of about 11 years and he filed the present complaint after more than three years of the final decision of the appellate court which was delivered on 30.4.1999. The present complaint, therefore, has been filed after about 14 years when the civil litigation started between the parties to the present petition. In the complaint, the issues decided by the civil court regarding the execution of the agreement to sell and alleged payment of Rs. 2 lacs by the complainant to Smt. Gobind Kaur through Pritam Singh have been reagitated. Now it is to be seen if the Magistrate adopted the right approach in issuing summons against the petitioners vide his order dated 17.1.2007 after taking cognizance of offences under Sections 415/193/191/209/ 34 IPC. 19. In Suresh v. Mahadevappa Shivappa Danannava, II (2005) SLT 595 : 1 (2005) CCR 214 (SC) : (2005) 3 SCC 670 : ( AIR 2005 SC 1047 ), the complainant had alleged that the agreement to sale dated 25.12.1988 in respect of a house was executed in favour of his wife by the accused person. The accused person (A-1) sold the said house to the wife of another accused (A-4). Legal notice dated 11.7.1996 was issued by the complainant calling upon the accused No. 1 to execute the sale deed. Accused No. 1 replied to the said notice on 18.7.1996 denying the very existence of the said agreement and the receipt of the amount. The accused person (A-1) sold the said house to the wife of another accused (A-4). Legal notice dated 11.7.1996 was issued by the complainant calling upon the accused No. 1 to execute the sale deed. Accused No. 1 replied to the said notice on 18.7.1996 denying the very existence of the said agreement and the receipt of the amount. Complainant filed the complaint on 17.5.1999, i.e. nearly three years from the date of reply by the accused No. 1, and 10-½ years from the date of the alleged agreement. The Apex Court, in these circumstances, held that complaint was not at all maintainable at this distance of time and was liable to be dismissed on the ground of inordinate laches on the part of the complainant itself. It was also held that the allegations in the complaint Were of civil nature and did not prima facie disclose commission of alleged offence under Section 420, IPC. (Reproduced from Ram Chander v. R. K. Khattar and Anr. (supra)) 20. In the present case, the case of the complainant is even worse. Alleged agreement is of the year 1986. The complainant did not take any steps till Gobind Kaur was alive. He did not file any suit for specific performance and the present complaint was filed by him in the year 2002, after he suffered decree in the civil court which held that the defendant/complainant failed to prove the execution of the impugned agreement to sell and also payment of Rs. 2 lacs. Hence, the complaint as filed suffers from delay and laches. 21. The other question which arises for consideration is as to whether prima facie case of cheating was made out by the complainant. To constitute an offence under Section 415 IPC which defines cheating, it is necessary to be shown that there was fraudulent or dishonest inducement to the person so deceived to deliver any property to the person deceiving him. This fraudulent and dishonest inducement has to be at the time when the deal is entered between the parties. The offence of cheating as defined under Section 415 is punishable under Section 420 IPC. A person cannot be held guilty of cheating because he failed to keep up a promise; subsequently such a culpable intention right at the beginning when he made the promise cannot be presumed. 22. The offence of cheating as defined under Section 415 is punishable under Section 420 IPC. A person cannot be held guilty of cheating because he failed to keep up a promise; subsequently such a culpable intention right at the beginning when he made the promise cannot be presumed. 22. In the present case, the complainant has to establish that from the very beginning i.e. when the alleged agreement to sell for 1/5th of undivided share of property was executed by Smt. Gobind Kaur through Pritam Singh they had any deceitful intention on their part not to give the share in the property as agreed and extract money from him. Mere breach of contract, therefore, cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction i.e. the time when the offence is alleged to have been committed. As discussed above, the present case is of civil claim and from bare reading of the complaint itself, I do not find any ingredients of cheating made out against the petitioners. 23. It is contended by the learned counsel for the respondent that even if the claim is of civil nature, it does not mean that the criminal complaint cannot be maintained. True that there may be instances where both criminal and civil remedies are open to a person and he is at liberty to take recourse to any or both the remedies. However, the facts and circumstances of this case, as discussed above, do not indicate any criminality in the action of the petitioners. 24. In M/s. Karam Chand Ganga Prasad and Another v. Union of India and Others (supra), it was observed that it is a well established principle of law that the decisions of the Supreme Court are binding on the criminal case whereas the converse is not true. 25. Sections 40 to 43 of the Evidence Act provide which judgments of courts or justice are relevant to what extent. Section 40 provides for previous judgments, orders and decrees which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. Section 40 provides for previous judgments, orders and decrees which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. Section 41 provides for relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and makes them relevant or conclusive as provided therein. Section 42 provides for relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41 if they relate to matters of a public nature relevant to the enquiry. As per Section 43, the judgments, orders or decrees other than mentioned in Sections 40, 41, 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some provisions of the Act. 26. In K.G. Premshanker v. Inspector of Police and Another (supra), it was observed : "21. The final judgment, order or decree of a competent court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction would be relevant if it confers upon or takes away from any person any legal character or it declares any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely. It further specifically provides that such judgment or decree is conclusive proof of what is provided therein such as legal character etc. As against this under Section 42, the relevancy of the judgments, orders and the decrees in previous proceedings is limited if they relate to matters of public nature relevant to the enquiry and such judgments, orders or decrees are not conclusive proof of that which they state. Illustration to Section 42 makes the position clear. 22. In the facts of the present case, Section 42 would have some bearing and the judgment and decree passed in a civil court would be relevant if it relates to a matter of public nature relevant to the enquiry but such judgment and decree is not a conclusive proof of that which it states." 27. After discussing various judgments, it was further observed : "30. After discussing various judgments, it was further observed : "30. What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. 31. Further, the judgment, order or decree passed in a previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is whether judgment, order or decree is relevant, if relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case." 28. In All Cargo Movers (I) Pvt. Ltd. and Ors. v. Dhanesh Badarmal Jain and Anr. (supra), it was observed : "17.... Breach of contract simpliciter does not constitute an offence. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case." 28. In All Cargo Movers (I) Pvt. Ltd. and Ors. v. Dhanesh Badarmal Jain and Anr. (supra), it was observed : "17.... Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients thereof. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior Courts while exercising this power should also strive to serve the ends of justice." 29. This Court should exercise its jurisdiction under Section 482 of the Code with great care. The Court should not examine the matter superficially and the court has to see if a matter which is essentially of civil nature has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law and therefore, before issuing process, a criminal court has to exercise a great deal of caution because issuance of process by a criminal court is a serious matter for an accused. Therefore, this court should exercise its jurisdiction under Section 482 of the Code to prevent abuse of the process of any court or otherwise to secure the ends of justice. 30. Therefore, this court should exercise its jurisdiction under Section 482 of the Code to prevent abuse of the process of any court or otherwise to secure the ends of justice. 30. Coming back to the facts and circumstances of this case, as pointed out above repeatedly, the complaint does not disclose any ill motive or mens rea on behalf of the executant of the agreement to sell in favour of the complainant for and on behalf of Gobind Kaur or the present petitioners at the time of execution of the said agreement to sell in depriving the respondent of a sum of Rs. 2 lacs thereby inducing the respondent to part with a sum of Rs. 2 lacs with an intention not to sell him 1/5th share in the suit property. Perusal of the entire complaint shows that the dispute is of civil nature. Under the circumstances, the complainant could have filed a suit for specific performance of the agreement to sell or could have made a counter claim in the written statement seeking specific performance of the said agreement. The present complaint is nothing but an , afterthought. The civil court considered all the issues raised in the complaint while deciding the civil suit filed by the petitioner against the respondent. The appellate court also considered all the issues regarding if the sum of Rs. 2 lacs was paid by the complainant at the time of the execution of the agreement. 31. Since the complainant has failed to show any criminality in the acts of Gobind Kaur and her attorney Pritam Singh at the time of the execution of the agreement and the alleged receipt of Rs. 2 lacs from the complainant, the learned Metropolitan Magistrate did not adopt a right approach in issuing summons against the petitioners for offences punishable under Sections 415/ 193/191 /209/34 IPC. The MM also did not take into consideration the report of the SHO regarding the nature of dispute inter se the parties and also the fact that a civil suit was filed by the petitioners against the complainant in respect of the same transaction wherein the respondent had taken a defence of having paid a sum of Rs. 2 lacs as consideration amount at the time of the execution of the alleged agreement to sell dated 4.8.1986. 32. 2 lacs as consideration amount at the time of the execution of the alleged agreement to sell dated 4.8.1986. 32. Sardar Jasbir Singh has been made co-accused in the complaint but he has been examined by the complainant as his own witness in pre-summoning evidence. Therefore, the learned MM could not have relied upon his statement as the basis for summoning the petitioners as accused in the complaint. 33. Section 195 of the Code lays down the procedure for prosecution for contempt of lawful authority of public servants for offences against public justice and for offences against public documents given in the form of evidence. As per this provision, court is debarred from taking cognizance of any of the offences punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and Section 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court except on the complaint in writing of that court by such officer of the court as that court may authorise in writing in that behalf or of some other court to which that court is subordinate. The term "Court" in the Section means a Civil, Revenue or Criminal Court and includes a tribunal. Section 340 of the Code prescribes the procedure to be followed for offences mentioned in Section 195 of the Code under which the learned MM has summoned the petitioners for offence under Section 191 punishable under Sections 193, 209 besides Section 415 punishable under Section 420 IPC. Court could not have taken cognizance of the offence allegedly committed by the petitioner under Section 193 read with Section 191/209/34 IPC without a complaint having been made in writing by the concerned civil court to it where such an offence was alleged to have been committed in relation to proceedings in the civil court i.e. before the Additional District Judge, in view of the mandatory provisions contained in Section 195 of the Code which specifically bars the jurisdiction of the Court to take cognizance of any of the offences mentioned therein. Therefore the summoning orders of the Magistrate against the petitioners under Section 193/191 /209 IPC are hit by provisions of Section 195 of the Code and the cognizance taken by the Magistrate of the offences is therefore without jurisdiction. 34. Therefore the summoning orders of the Magistrate against the petitioners under Section 193/191 /209 IPC are hit by provisions of Section 195 of the Code and the cognizance taken by the Magistrate of the offences is therefore without jurisdiction. 34. As discussed above, the complaint does not disclose any ingredients of cheating as defined under Section 415 of the IPC i.e. there are no allegations of deceit, fraudulent or dishonest inducement by the petitioner to the respondent /complainant to part with his property i.e. Rs. 2 lacs and also the court had no jurisdiction to take cognizance of offence under Section 193/ 209/34 IPC without having received any complaint under Section 195 from the concerned civil court. The Court adopted an erroneous approach in issuing summons for appearance against the petitioners in the complaint No. 88/1/2002 filed by the respondent/complainant. 35. Hence, the petition is allowed and complaint No. 88/1 /2002 and the impugned order dated 17.1.2007 under Section 415/ 193/191/209/34 IPC, Police Station Desh Bandhu Gupta Road and other proceedings conducted by the Magistrate in the said complaint are hereby quashed. 36. Attested copy of the order be sent to the trial court. Petition allowed.